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6242S.04C
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SENATE COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 1468
AN ACT
To repeal sections 82.1025, 214.330, 452.335,
452.375, 452.410, 452.423, 456.4 -420, 469.401,
469.402, 469.403, 469.405, 469.409, 469.411, 469.413,
469.415, 469.417, 469.419, 469.421, 469.423, 469.425,
469.427, 469.429, 469.431, 469.432, 469.433, 469.435,
469.437, 469.439, 469.441, 469.443, 469.445, 469.447,
469.449, 469.451, 469.453, 469.455, 469.457, 469.459,
469.461, 469.463, 469.465, 469.467, 488.426, 513.430,
536.085, and 537.528, RSMo, and to enact in lieu
thereof fifty -nine new sections relating to ci vil
jurisprudence, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 82.1025, 214.330, 452.335, 452.375,
452.410, 452.423, 456.4 -420, 469.401, 469.402, 469.403,
469.405, 469.409, 469.411, 469.413, 469.415, 469.417, 469.419,
469.421, 469.423, 469.425, 469.427, 469.429, 469.431, 469.432,
469.433, 469.435, 469.437, 469.439, 469.441, 469.443, 469.445,
469.447, 469.449, 469.451, 469.453, 469.455, 469.457, 469.459,
469.461, 469.463, 469.465, 469.467, 488.426, 513.430, 536.085,
and 537.528, RSMo, are repealed and fifty -nine new sections
enacted in lieu the reof, to be known as sections 82.1025,
214.330, 452.335, 452.375, 452.381, 452.410, 452.423, 456.4 -
420, 469.399, 469.401, 469.402, 469.403, 469.404, 469.405,
469.413, 469.415, 469.417, 469.419, 469.421, 469.423, 469.425,
469.427, 469.429, 469.431, 469.432, 469.433, 469.435, 469.437,
469.439, 469.441, 469.443, 469.445, 469.446, 469.447, 469.449,
469.451, 469.453, 469.455, 469.456, 469.457, 469.459, 469.462,
469.463, 469.464, 469.465, 469.467, 469.471, 469.473, 469.475,
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469.477, 469.479, 469.481, 469.483, 469.485, 469.487, 488.426,
513.430, 536.085, and 537.529, to read as follows:
82.1025. 1. Sections 82.1025, 82.1027 and 82.1030
apply to a nuisance located within the boundaries of:
(1) Any city not within a county;
(2) Any home rule city with at least three hundred
fifty thousand inhabitants which is located in more than one
county;
(3) Any home rule city with more than one hundred
sixty thousand but fewer than two hundred thousand
inhabitants; [or]
(4) Any home rule city with more than seventy-one
thousand but fewer than seventy-nine thousand inhabitants; or
(5) Any city with more than one hundred five thousand
but fewer than one hundred twenty-five thousand inhabitants.
2. Any property owner who owns property within one
thousand two hundred feet of a parcel of property that is
alleged to be a nuisance may bring a nuisance action under
this section against the offending property owner for the
amount of damage created by such nuisance to the value of
the petitioner's property, including diminution in value of
the petitioner's property, and court costs.
3. An action for injunctive relief to abate a nuisance
may be brought under this section by:
(1) Anyone who owns property within one thousand two
hundred feet to a property which is alleged to be a
nuisance; or
(2) A neighborhood organization, as defined in section
82.1027, on behalf of any person or persons who own property
within the boundaries of the neighborhood or neighborhoods
described in the articles of incorporation or bylaws of the
neighborhood organization and who could maintain a nuisance
action under this section or under the common law of private
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nuisance, or on its own behalf with respect to a nuisance on
property anywhere within the boundaries of the neighborhood
or neighborhoods.
4. An action shall not be brought under this section
until sixty days after the party who brings the action has
mailed notice of intent to bring an action under this
section, postage prepaid, to:
(1) The tenant, if any, or to "occupant" if the
identity of the tenant cannot be reasonably ascertained, at
the property's address; and
(2) The property owner of record at the last known
address of the property owner on file with the county or
city, or, if the property owner is a corporation or other
type of limited liability company, to the property owner's
registered agent at the agent's address of record;
that a nuisance exists and that legal action may be taken
against the owner of the property if the nuisance is not
eliminated within sixty days after the date on the mailed
notice. If the notice is returned unclaimed or refused,
designated by the post office to be undeliverable, or signed
for by a person other than the addressee, then adequate and
sufficient notice shall be provided by posting a copy of the
notice on the property where the nuisance allegedly is
occurring. A sworn affidavit by the person who mailed or
posted the notice describing the date and manner that notice
was given shall be sufficient evidence to establish that the
notice was given. The notice shall specify:
(a) The act or condition that constitutes the nuisance;
(b) The date the nuisance was first discovered;
(c) The address of the property and location on the
property where the act or condition that constitutes the
nuisance is allegedly occurring or exists; and
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(d) The relief sought in the action.
5. A copy of a notice of citation issued by the city
or county that shows the date the citation was issued shall
be prima facie evidence of whether and for how long the
property has been in violation of the code or ordinance
provisions described in the citation.
6. A proceeding under this section shall:
(1) Be heard at the earliest practicable date; and
(2) Be expedited in every way.
7. When a property owner or neighborhood organization
brings an action under this section for injunctive relief to
abate a nuisance, a prima facie case for injunctive relief
shall be made upon proof that a nuisance exists on the
property. An action for injunctive relief to abate a
nuisance shall be heard by the court without a jury and
shall not require proof that the party bringing the action
has sustained damage or loss as a result of the nuisance.
8. When a property owner or neighborhood organization
bringing the action prevails in such action, such property
owner or organization may be entitled to an award for
attorneys' fees and expenses, based on the amount of time
reasonably expended, as ordered by the court, which award
for attorneys' fees and expenses shall be entered as a
judgment against the owner of the property on which the act
or condition constituting the nuisance occurred or was
located.
9. In addition to any other penalties or costs
associated with the abatement of a nuisance that are imposed
pursuant to sections 82.1025 to 82.1031, any person or
entity that is not a resident of this state and who is an
owner of property found to have a code or ordinance
violation shall be subject to a civil fine of two thousand
dollars per violation. Any property found to have a code or
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ordinance violation and that is structurally unsafe or poses
a threat to persons or other property shall have such
nuisance abated within one year of the code or ordinance
violation. Any such property that is not abated within one
year, and any property with unpaid civil fines within two
years of the imposition of the fine shall be subject to sale
by the taxing jurisdiction in which the property is
located. The property shall be sold in an amount that will
satisfy the costs incurred for abating the property as well
as any outstanding civil fines. Such sale shall coincide
with the sale of delinquent properties under chapters 140
and 141.
214.330. 1. (1) The endowed care trust fund required
by sections 214.270 to 214.410 shall be permanently set
aside in trust or in accordance with the provisions of
subsection 2 of this section. The trustee of the endowed
care trust shall be a state or federally chartered financial
institution authorized to exercise trust powers in
Missouri. The contact information for a trust officer or
duly appointed representative of the trustee with knowledge
and access to the trust fund accounting and trust fund
records must be disclosed to the office or its duly
authorized representative upon request.
(2) The trust fund records, including all trust fund
accounting records, shall be maintained in the state of
Missouri at all times or shall be electronically stored so
that the records may be made available in the state of
Missouri within fifteen business days of receipt of a
written request. The operator of an endowed care cemetery
shall maintain a current name and address of the trustee and
the records custodian for the endowed care trust fund and
shall supply such information to the office, or its
representative, upon request.
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(3) Missouri law shall control all endowed care trust
funds and the Missouri courts shall have jurisdiction over
endowed care trusts regardless of where records may be kept
or various administrative tasks may be performed.
2. An endowed care trust fund shall be administered in
accordance with Missouri law governing trusts, including but
not limited to the applicable provisions of chapters 456 and
469, except as specifically provided in this subsection or
where the provisions of sections 214.270 to 214.410 provide
differently, provided that a cemetery operator shall not in
any circumstances be authorized to restrict, enlarge,
change, or modify the requirements of this section or the
provisions of chapters 456 and 469 by agreement or otherwise.
(1) Income and principal of an endowed care trust fund
shall be determined under the provisions of law applicable
to trusts, except that the [provisions of section 469.405
shall not apply] trustee shall have:
(a) No power of adjustment under section 469.405;
(b) No power of conversion either from an income trust
to a unitrust or from a unitrust to an income trust under
section 469.475;
(c) No power or discretion to determine or modify the
unitrust rate, as established in the terms of the endowed
care trust agreement; and
(d) No discretion to determine applicable value for
purposes of computing the unitrust amount beyond that
granted by law and exercised solely for reasons of
administrative convenience and not affect the size of
distributions.
In determining applicable value under section 469.473,
values over a three-year period if available, or the
duration of the trust if shorter, shall be used.
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(2) No principal shall be distributed from an endowed
care trust fund except to the extent that a unitrust
[election is in effect with respect to such trust under the
provisions of section 469.411] amount is required by the
terms of the endowed care trust fund agreement under
subdivision (6) of this subsection.
(3) No right to transfer jurisdiction from Missouri
under section 456.1-108 shall exist for endowed care trusts.
(4) All endowed care trusts shall be irrevocable.
(5) No trustee shall have the power to terminate an
endowed care trust fund under the provisions of section
456.4-414.
(6) A unitrust [election made in accordance with the
provisions of chapter 469] definition of income under
sections 469.471 to 469.487 shall be [made] established by
the cemetery operator in the terms of the endowed care trust
fund agreement itself, not by the trustee, and shall not
provide for a unitrust rate exceeding five percent per
annum. The unitrust rate shall be changed only by amendment
to the agreement as provided in this section.
(7) No contract of insurance shall be deemed a
suitable investment for an endowed care trust fund.
(8) The income from the endowed care fund may be
distributed to the cemetery operator at least annually on a
date designated by the cemetery operator by record, but no
later than sixty days following the end of the [trust fund]
trust's fiscal year. Any income not distributed within
sixty days following the end of the trust's fiscal year
shall be added to and held as part of the principal of the
trust fund. The cemetery operator may instruct by record
the trustee to distribute less than all the income
distributable for the year if the cemetery operator
determines that the money is not needed.
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3. The cemetery operator shall have the duty and
responsibility to apply the income distributed to provide
care and maintenance only for that part of the cemetery
designated as an endowed care section and not for any other
purpose.
4. In addition to any other duty, obligation, or
requirement imposed by sections 214.270 to 214.410 or the
endowed care trust agreement, the trustee's duties shall be
the maintenance of records related to the trust and the
accounting for and investment of moneys deposited by the
operator to the endowed care trust fund.
(1) For the purposes of sections 214.270 to 214.410,
the trustee shall not be deemed responsible for the care,
the maintenance, or the operation of the cemetery, or for
any other matter relating to the cemetery, or the proper
expenditure of funds distributed by the trustee to the
cemetery operator, including, but not limited to, compliance
with environmental laws and regulations.
(2) With respect to cemetery property maintained by
endowed care funds, the cemetery operator shall be
responsible for the performance of the care and maintenance
of the cemetery property.
5. If the endowed care cemetery fund is not
permanently set aside in a trust fund as required by
subsection 1 of this section, then the funds shall be
permanently set aside in an escrow account in the state of
Missouri. Funds in an escrow account shall be placed in an
endowed care trust fund under subsection 1 if the funds in
the escrow account exceed three hundred fifty thousand
dollars, unless otherwise approved by the division for good
cause. The account shall be insured by the Federal Deposit
Insurance Corporation or comparable deposit insurance and
held in a state or federally chartered financial institution
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authorized to do business in Missouri and located in this
state.
(1) The interest from the escrow account may be
distributed to the cemetery operator at least in annual or
semiannual installments, but not later than six months
following the calendar year. Any interest not distributed
within six months following the end of the calendar year
shall be added to and held as part of the principal of the
account.
(2) The cemetery operator shall have the duty and
responsibility to apply the interest to provide care and
maintenance only for that part of the cemetery in which
burial space shall have been sold and with respect to which
sales the escrow account shall have been established and not
for any other purpose. The principal of such funds shall be
kept intact. The cemetery operator's duties shall be the
maintenance of records and the accounting for an investment
of moneys deposited by the operator to the escrow account.
For purposes of sections 214.270 to 214.410, the
administrator of the office of endowed care cemeteries shall
not be deemed to be responsible for the care, maintenance,
or operation of the cemetery. With respect to cemetery
property maintained by cemetery care funds, the cemetery
operator shall be responsible for the performance of the
care and maintenance of the cemetery property owned by the
cemetery operator.
(3) The division may approve an escrow agent if the
escrow agent demonstrates the knowledge, skill, and ability
to handle escrow funds and financial transactions and is of
good moral character.
6. The cemetery operator shall be accountable to the
owners of burial space in the cemetery for compliance with
sections 214.270 to 214.410.
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7. Excluding funds held in an escrow account, all
endowed care trust funds shall be administered in accordance
with an endowed care trust fund agreement, which shall be
submitted to the office by the cemetery operator for review
and approval. The endowed care cemetery shall be notified
in writing by the office of endowed care cemeteries
regarding the approval or disapproval of the endowed care
trust fund agreement and regarding any changes required to
be made for compliance with sections 214.270 to 214.410 and
the rules and regulations promulgated thereunder.
8. All endowed care cemeteries shall be under a
continuing duty to file with the office of endowed care
cemeteries and to submit for prior approval any and all
changes, amendments, or revisions of the endowed care trust
fund agreement at least thirty days before the effective
date of such change, amendment, or revision.
9. If the endowed care trust fund agreement, or any
changes, amendments, or revisions filed with the office, are
not disapproved by the office within thirty days after
submission by the cemetery operator, the endowed care trust
fund agreement, or the related change, amendment, or
revision, shall be deemed approved and may be used by the
cemetery operator and the trustee. Notwithstanding any
other provision of this section, the office may review and
disapprove an endowed care trust fund agreement, or any
submitted change, amendment, or revision, after the thirty
days provided herein or at any other time if the agreement
is not in compliance with sections 214.270 to 214.410 or the
rules promulgated thereunder. Notice of disapproval by the
office shall be in writing and delivered to the cemetery
operator and the trustee within ten days of disapproval.
10. Funds in an endowed care trust fund or escrow
account may be commingled with endowed care funds for other
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endowed care cemeteries, provided that the cemetery operator
and the trustee shall maintain adequate accounting records
of the disbursements, contributions, and income allocated
for each cemetery.
11. By accepting the trusteeship of an endowed care
trust or accepting funds as an escrow agent pursuant to
sections 214.270 to 214.410, the trustee or escrow agent
submits personally to the jurisdiction of the courts of this
state and the office of endowed care cemeteries regarding
the administration of the trust or escrow account. A
trustee or escrow agent shall consent in writing to the
jurisdiction of the state of Missouri and the office in
regards to the trusteeship or the operation of the escrow
account and to the appointment of the office of secretary of
state as its agent for service of process regarding any
administrative or legal actions relating to the trust or the
escrow account, if it has no designated agent for service of
process located in this state. Such consent shall be filed
with the office prior to accepting funds pursuant to
sections 214.270 to 214.410 as trustee or as an escrow agent
on a form provided by the office by rule.
452.335. 1. In a proceeding for nonretroactive
invalidity, dissolution of marriage or legal separation, or
a proceeding for maintenance following dissolution of the
marriage by a court which lacked personal jurisdiction over
the absent spouse, the court may grant a maintenance order
to either spouse, but only if it finds that the spouse
seeking maintenance:
(1) Lacks sufficient property, including marital
property apportioned to him, to provide for his reasonable
needs; and
(2) Is unable to support himself through appropriate
employment or is the custodian of a child whose condition or
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circumstances make it appropriate that the custodian not be
required to seek employment outside the home.
2. The maintenance order shall be in such amounts and
for such periods of time as the court deems just, and after
considering all relevant factors including:
(1) The financial resources of the party seeking
maintenance, including marital property apportioned to him,
and his ability to meet his needs independently, including
the extent to which a provision for support of a child
living with the party includes a sum for that party as
custodian;
(2) The time necessary to acquire sufficient education
or training to enable the party seeking maintenance to find
appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the
marriage;
(5) The obligations and assets, including the marital
property apportioned to him and the separate property of
each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition
of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is
sought to meet his needs while meeting those of the spouse
seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
3. Notwithstanding the provisions of subsection 2 of
this section to the contrary, a maintenance order shall
terminate upon the payor reaching full retirement age,
unless otherwise agreed to by both parties. For purposes of
this subsection, "full retirement age" shall mean the
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earlier of the date on which the payor is either eligible
for or begins receiving full retirement benefits under the
federal Social Security Act, but shall not mean "early
retirement age" as defined under the federal Social Security
Act, 42 U.S.C. Section 416, as amended. The payor shall
provide the payee reasonable notice in advance of
retirement. Six months notice shall be presumed to be
reasonable.
4. The maintenance order shall state if it is
modifiable or nonmodifiable. The court may order
maintenance which includes a termination date. Unless the
maintenance order which includes a termination date is
nonmodifiable, the court may order the maintenance
decreased, increased, terminated, extended, or otherwise
modified based upon a substantial and continuing change of
circumstances which occurred prior to the termination date
of the original order.
452.375. 1. As used in this chapter, unless the
context clearly indicates otherwise:
(1) "Custody" means joint legal custody, sole legal
custody, joint physical custody or sole physical custody or
any combination thereof;
(2) "Joint legal custody" means that the parents share
the decision-making rights, responsibilities, and authority
relating to the health, education and welfare of the child,
and, unless allocated, apportioned, or decreed, the parents
shall confer with one another in the exercise of decision-
making rights, responsibilities, and authority;
(3) "Joint physical custody" means an order awarding
each of the parents significant, but not necessarily equal,
periods of time during which a child resides with or is
under the care and supervision of each of the parents.
Joint physical custody shall be shared by the parents in
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such a way as to assure the child of frequent, continuing
and meaningful contact with both parents;
(4) "Third-party custody" means a third party
designated as a legal and physical custodian pursuant to
subdivision (5) of subsection 5 of this section.
2. The court shall determine custody in accordance
with the best interests of the child. There shall be a
rebuttable presumption that an award of equal or
approximately equal parenting time to each parent is in the
best interests of the child. Such presumption is rebuttable
only by a preponderance of the evidence in accordance with
all relevant factors, including, but not limited to, the
factors contained in subdivisions (1) to [(8)] (14) of this
subsection. The presumption may also be rebutted if the
court finds that the parents have reached an agreement on
all issues related to custody, or if the court finds that a
pattern of domestic violence has occurred as set out in
subdivision (6) of this subsection. When the parties have
not reached an agreement on all issues related to custody,
the court shall consider all relevant factors and enter
written findings of fact and conclusions of law, including,
but not limited to, the following:
(1) The wishes of the child's parents as to custody
and the proposed parenting plan submitted by both parties;
(2) [The needs of the child for a frequent, continuing
and meaningful relationship with both parents and the
ability and willingness of parents to actively perform their
functions as mother and father for the needs of the child]
The nature and quality of the child's existing relationship
with each parent, including, but not limited to, the child's
need for continuity, stability, and emotional security, and
the ability and willingness of each parent to actively
perform caregiving functions for the needs of the child. In
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evaluating this factor, the court may consider, but shall
not be required to treat as a presumptive or paramount
concern, the frequency or quantity of contact between the
child and each parent, and shall instead weigh the overall
quality of each parent-child relationship against all other
factors enumerated in this subsection;
(3) The interaction and interrelationship of the child
with parents, siblings, and any other person who may
significantly affect the child's best interests;
(4) Which parent is more likely to allow the child
frequent, continuing and meaningful contact with the other
parent;
(5) The child's adjustment to the child's home,
school, and community. The fact that a parent sends his or
her child or children to a home school or FPE school shall
not be the sole factor that a court considers in determining
custody of such child or children;
(6) The mental and physical health of all individuals
involved, including any history of abuse of any individuals
involved. Where credible evidence is presented that a
parent has a current or prior diagnosis of a mental health
condition that may affect parenting capacity, the court
shall affirmatively evaluate the following:
(a) The nature and severity of the diagnosed condition;
(b) Whether the parent is currently engaged in
treatment with a licensed mental health professional,
including, but not limited to, psychotherapy, counseling,
psychiatric care, or medication management;
(c) The parent's degree of compliance with any
prescribed or recommended treatment plan, including
medication adherence, therapy attendance, and follow-up care;
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(d) The extent to which the condition, if inadequately
treated or unmanaged, poses a risk to the child's physical
safety, emotional well-being, or developmental needs; and
(e) Any expert testimony or reports from licensed
mental health professionals regarding the parent's current
functioning, prognosis, and fitness to exercise custodial or
visitation responsibilities.
A diagnosis of a mental health condition alone shall not be
grounds for denying custody or visitation; however, a
parent's demonstrated pattern of noncompliance with
treatment, or refusal to engage in recommended treatment
when noncompliance has resulted in behavior detrimental to
the child, may be considered as a factor weighing against an
award of custody or unsupervised visitation to that parent.
If the court finds that a pattern of domestic violence as
defined in section 455.010 has occurred, and, if the court
also finds that awarding custody to the abusive parent is in
the best interest of the child, then the court shall enter
written findings of fact and conclusions of law. Custody
and visitation rights shall be ordered in a manner that best
protects the child and any other child or children for whom
the parent has custodial or visitation rights, and the
parent or other family or household member who is the victim
of domestic violence from any further harm;
(7) The child's need for stability, continuity of
care, and consistent routine, as well as the capacity of
each parent to provide a safe, stable, and developmentally
appropriate environment;
(8) The intention of either parent to relocate the
principal residence of the child; and
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[(8)] (9) The unobstructed input of a child, free of
coercion and manipulation, as to the child's custodial
arrangement;
(10) Whether the child's present or past living
conditions have had, or are likely to have, an adverse
effect on the child's physical, mental, moral, or emotional
health or development, including, but not limited to,
exposure to substance abuse, domestic violence, or chronic
instability in the household;
(11) The ability of each parent to encourage and
facilitate a close and continuing relationship between the
child and the other parent, except where such contact would
be harmful to the child, and the willingness of each parent
to support the child's relationship with the other parent in
a manner free of manipulation, disparagement, or coercion;
(12) Whether the past pattern of involvement of each
parent with the child reflects a system of values, time
commitment, and mutual support that serves the child's
developmental needs, and the extent to which each parent has
historically participated in caregiving, decision-making,
and engagement with the child's educational, medical, and
extracurricular activities;
(13) The ability of each parent to place the needs of
the child ahead of his or her own needs, including the
parent's demonstrated capacity for prioritizing the child's
emotional security, developmental requirements, and day-to-
day welfare over personal preferences or conflicts with the
other parent; and
(14) The impact of any history of domestic violence,
as defined in section 455.010, on the child, regardless of
whether the child was a direct victim, including the effects
of exposure to coercive control, intimidation, or fear
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within the household on the child's emotional,
psychological, and behavioral functioning.
3. (1) In any court proceedings relating to custody
of a child, the court shall not award custody or
unsupervised visitation of a child to a parent if such
parent or any person residing with such parent has been
found guilty of, or pled guilty to, any of the following
offenses when a child was the victim:
(a) A felony violation of section 566.030, 566.031,
566.032, 566.060, 566.061, 566.062, 566.064, 566.067,
566.068, 566.083, 566.100, 566.101, 566.111, 566.151,
566.203, 566.206, 566.209, 566.211, or 566.215;
(b) A violation of section 568.020;
(c) A violation of subdivision (2) of subsection 1 of
section 568.060;
(d) A violation of section 568.065;
(e) A violation of section 573.200;
(f) A violation of section 573.205; or
(g) A violation of section 568.175.
(2) For all other violations of offenses in chapters
566 and 568 not specifically listed in subdivision (1) of
this subsection or for a violation of an offense committed
in another state when a child is the victim that would be a
violation of chapter 566 or 568 if committed in Missouri,
the court may exercise its discretion in awarding custody or
visitation of a child to a parent if such parent or any
person residing with such parent has been found guilty of,
or pled guilty to, any such offense.
4. The general assembly finds and declares that it is
the public policy of this state that [frequent, continuing
and meaningful contact with both parents after the parents
have separated or dissolved their marriage is in the best
interest of the child, except for cases where the court
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specifically finds that such contact is not in the best
interest of the child, and that it is the public policy of
this state to encourage parents to participate in decisions
affecting the health, education and welfare of their
children, and to resolve disputes involving their children
amicably through alternative dispute resolution], when
consistent with the best interests of the child, maintaining
a meaningful relationship with both parents after the
parents have separated or dissolved their marriage should be
facilitated by the court. This policy shall not operate as
a presumption in favor of any particular custody
arrangement, and the court retains full discretion to
determine that the child's safety, emotional well-being,
developmental needs, or other best-interest factors outweigh
the interest in maximizing parenting time with both
parents. It is further the public policy of this state to
encourage parents to participate in decisions affecting the
health, education, and welfare of their children, and to
resolve disputes involving their children amicably through
alternative dispute resolution. In order to effectuate
these policies, the general assembly encourages the court to
enter a temporary parenting plan as early as practicable in
a proceeding under this chapter, consistent with the
provisions of subsection 2 of this section, and, in so
doing, the court shall determine the custody arrangement
[which will best assure both parents participate in such
decisions and have frequent, continuing and meaningful
contact with their children so long as it is in the best
interests of the child] that best serves the child's overall
well-being as measured by the totality of the factors
enumerated in subsection 2 of this section.
20
5. Prior to awarding the appropriate custody
arrangement in the best interest of the child, the court
shall consider each of the following as follows:
(1) Joint physical and joint legal custody to both
parents, which shall not be denied solely for the reason
that one parent opposes a joint physical and joint legal
custody award. The residence of one of the parents shall be
designated as the address of the child for mailing and
educational purposes;
(2) Joint physical custody with one party granted sole
legal custody. The residence of one of the parents shall be
designated as the address of the child for mailing and
educational purposes;
(3) Joint legal custody with one party granted sole
physical custody;
(4) Sole custody to either parent; or
(5) Third-party custody or visitation:
(a) When the court finds that each parent is unfit,
unsuitable, or unable to be a custodian, or the welfare of
the child requires, and it is in the best interests of the
child, then custody, temporary custody or visitation may be
awarded to a person related by consanguinity or affinity to
the child. If no person related to the child by
consanguinity or affinity is willing to accept custody, then
the court may award custody to any other person or persons
deemed by the court to be suitable and able to provide an
adequate and stable environment for the child. Before the
court awards custody, temporary custody or visitation to a
third person under this subdivision, the court shall make
that person a party to the action;
(b) Under the provisions of this subsection, any
person may petition the court to intervene as a party in
interest at any time as provided by supreme court rule.
21
6. If the parties have not agreed to a custodial
arrangement, or the court determines such arrangement is not
in the best interest of the child, the court shall include a
written finding in the judgment or order based on the public
policy in subsection 4 of this section and each of the
factors listed in subdivisions (1) to [(8)] (14) of
subsection 2 of this section detailing the specific relevant
factors that made a particular arrangement in the best
interest of the child. If a proposed custodial arrangement
is rejected by the court, the court shall include a written
finding in the judgment or order detailing the specific
relevant factors resulting in the rejection of such
arrangement.
7. Upon a finding by the court that either parent has
refused to exchange information with the other parent, which
shall include but not be limited to information concerning
the health, education and welfare of the child, the court
shall order the parent to comply immediately and to pay the
prevailing party a sum equal to the prevailing party's cost
associated with obtaining the requested information, which
shall include but not be limited to reasonable attorney's
fees and court costs.
8. As between the parents of a child, no preference
may be given to either parent in the awarding of custody
because of that parent's age, sex, or financial status, nor
because of the age or sex of the child. The court shall not
presume that a parent, solely because of his or her sex, is
more qualified than the other parent to act as a joint or
sole legal or physical custodian for the child.
9. Any judgment providing for custody shall include a
specific written parenting plan setting forth the terms of
such parenting plan arrangements specified in subsection 8
of section 452.310. Such plan may be a parenting plan
22
submitted by the parties pursuant to section 452.310 or, in
the absence thereof, a plan determined by the court, but in
all cases, the custody plan approved and ordered by the
court shall be in the court's discretion and shall be in the
best interest of the child.
10. After August 28, 2016, every court order
establishing or modifying custody or visitation shall
include the following language: "In the event of
noncompliance with this order, the aggrieved party may file
a verified motion for contempt. If custody, visitation, or
third-party custody is denied or interfered with by a parent
or third party without good cause, the aggrieved person may
file a family access motion with the court stating the
specific facts that constitute a violation of the custody
provisions of the judgment of dissolution, legal separation,
or judgment of paternity. The circuit clerk will provide
the aggrieved party with an explanation of the procedures
for filing a family access motion and a simple form for use
in filing the family access motion. A family access motion
does not require the assistance of legal counsel to prepare
and file.".
11. No court shall adopt any local rule, form, or
practice requiring a standardized or default parenting plan
for interim, temporary, or permanent orders or judgments.
Notwithstanding any other provision of law to the contrary,
a court may enter an interim order in a proceeding under
this chapter, provided that the interim order shall not
contain any provisions about child custody or a parenting
schedule or plan without first providing the parties with
notice and a hearing, unless the parties otherwise agree.
12. Unless a parent has been denied custody rights
pursuant to this section or visitation rights under section
452.400, both parents shall have access to records and
23
information pertaining to a minor child including, but not
limited to, medical, dental, and school records. If the
parent without custody has been granted restricted or
supervised visitation because the court has found that the
parent with custody or any child has been the victim of
domestic violence, as defined in section 455.010, by the
parent without custody, the court may order that the reports
and records made available pursuant to this subsection not
include the address of the parent with custody or the
child. A court shall order that the reports and records
made available under this subsection not include the address
of the parent with custody if the parent with custody is a
participant in the address confidentiality program under
section 589.663. Unless a parent has been denied custody
rights pursuant to this section or visitation rights under
section 452.400, any judgment of dissolution or other
applicable court order shall specifically allow both parents
access to such records and reports.
13. Except as otherwise precluded by state or federal
law, if any individual, professional, public or private
institution or organization denies access or fails to
provide or disclose any and all records and information,
including, but not limited to, past and present dental,
medical and school records pertaining to a minor child, to
either parent upon the written request of such parent, the
court shall, upon its finding that the individual,
professional, public or private institution or organization
denied such request without good cause, order that party to
comply immediately with such request and to pay to the
prevailing party all costs incurred, including, but not
limited to, attorney's fees and court costs associated with
obtaining the requested information.
24
14. An award of joint custody does not preclude an
award of child support pursuant to section 452.340 and
applicable supreme court rules. The court shall consider
the factors contained in section 452.340 and applicable
supreme court rules in determining an amount reasonable or
necessary for the support of the child.
15. If the court finds that domestic violence or abuse
as defined in section 455.010 has occurred, the court shall
make specific findings of fact to show that the custody or
visitation arrangement ordered by the court best protects
the child and the parent or other family or household member
who is the victim of domestic violence, as defined in
section 455.010, and any other children for whom such parent
has custodial or visitation rights from any further harm.
452.381. 1. During the pendency of an action seeking
a modification of any judgment pertaining to child custody
or visitation, upon the motion of any party and with notice
to all other parties and after a hearing, the court may make
temporary orders relative to the custody and visitation of
the child subject to the judgment being modified. Any such
order shall remain in effect until the disposition of the
motion to modify or until further order of the court.
2. Notwithstanding the provisions of subsection 1 of
this section to the contrary, an order entered relative to
custody or visitation under this section may be entered
without notice to opposing parties if the court finds that
an emergency exists, the nature of which requires the court
to act before opposing parties can be heard in opposition,
including, but not limited to, an emergency in which the
child faces immediate or imminent risk of physical harm,
emotional harm, psychological injury, or medical neglect
because of:
25
(1) A parent's deteriorating mental health, as
evidenced by observable behavior, professional reports, or
other credible evidence;
(2) A parent's failure to comply with a prescribed or
recommended treatment plan for a diagnosed mental health
condition, where such noncompliance has resulted in or is
reasonably likely to result in conduct that endangers the
child;
(3) Reports from licensed medical or mental health
professionals indicating a parent's instability,
decompensation, or inability to safely exercise custodial or
visitation responsibilities;
(4) A pattern of emotional volatility, coercive
behavior, or erratic conduct by a parent that creates a
substantial risk of harm to the child; or
(5) A parent's refusal to submit to a mental health
evaluation when ordered by the court pursuant to subsection
7 of this section or section 452.375.
In all such cases, the order shall be for a period not to
exceed fifteen days or until further order of the court, and
written notice of the issuance of any such order and the
reasons for it shall be given to opposing parties, along
with notice of the date, time, and place that a hearing on
the continuation of the order will be held.
3. No temporary order shall deny parenting time to a
parent or any other party granted custody or visitation
under the judgment for which modification is sought, unless
the court finds that parenting time is likely to cause
physical or emotional harm to the child.
4. If temporary parenting time is ordered, the court
may also order temporary child support or temporarily modify
any existing child support orders if requested by any party.
26
5. A temporary parenting plan issued under this
section shall not prejudice the rights of the parties or the
child that are to be adjudicated at subsequent hearings in
the proceeding.
6. Dismissal of the motion to modify shall
automatically vacate any temporary order issued under this
section.
7. In any proceeding under this section in which a
parent's mental health is at issue, the court may order an
independent mental health evaluation of any parent by a
licensed mental health professional. The evaluator shall
submit a written report to the court addressing the parent's
current diagnosis, treatment compliance, functional capacity
for parenting, and any recommended safeguards or conditions
on custody or visitation. The cost of such evaluation shall
be apportioned by the court as it deems equitable.
452.410. 1. Except as provided in subsection 2 of
this section, the court shall not modify a prior custody
decree unless it has jurisdiction under the provisions of
section 452.745 and it finds, upon the basis of facts that
have arisen since the prior decree or that were unknown to
the court at the time of the prior decree, that a change has
occurred in the circumstances of the child or his custodian
and that the modification is necessary to serve the best
interests of the child. Notwithstanding any other provision
of this section or sections 452.375 and 452.400 to the
contrary, any custody order entered by any court in this
state or any other state may, subject to jurisdictional
requirements, be modified to allow for joint custody or
visitation only in accordance with section 452.375, 452.400,
452.402, or 452.403.
2. If either parent files a motion to modify an award
of joint legal custody or joint physical custody, each party
27
shall be entitled to a change of judge as provided by
supreme court rule.
3. If the parties have agreed to terms for
modification of custody or visitation of the child, the
parties may submit to the court a proposed parenting plan
signed, under oath, by all parties having rights of custody
or visitation under the existing custody or visitation
judgment. The proposed plan shall be accompanied by a
motion, signed under oath by all parties, requesting a
modification of the existing parenting plan and no statement
of any changes in circumstances shall be required. If the
court determines that the proposed plan is in the child's
best interests, then the court shall enter an order granting
custody or visitation according to the proposed parenting
plan as soon as possible following the filing.
4. As used in this section and in cases where one or
more children subject to a custody order have special needs
or disabilities, a change of circumstances may include one
parent's neglect or harm of the best interests of the child
or children with special needs or disabilities. A change of
circumstances under this section may also include a
custodial parent's failure to comply with a prescribed or
recommended treatment plan for a diagnosed mental health
condition, where such noncompliance has materially impaired
the parent's ability to meet the particular caregiving,
therapeutic, medical, or developmental needs of the child or
children with special needs or disabilities. In evaluating
a motion to modify under this section, the court shall
consider any evidence of the parent's current mental health
status, treatment compliance, and the impact of any
noncompliance on the child's safety, stability, and access
to necessary services.
28
452.423. 1. In all proceedings for child custody or
for dissolution of marriage or legal separation where
custody, visitation, or support of a child is a contested
issue, the court may appoint a guardian ad litem.
Disqualification of a guardian ad litem shall be ordered in
any legal proceeding only pursuant to this chapter, upon the
filing of a written application by any party within ten days
of appointment, or within ten days of August 28, 1998, if
the appointment occurs prior to August 28, 1998. Each party
shall be entitled to one disqualification of a guardian ad
litem appointed under this subsection in each proceeding,
except a party may be entitled to additional
disqualifications of a guardian ad litem for good cause
shown.
2. The court shall appoint a guardian ad litem in any
proceeding in which child abuse or neglect is alleged.
3. The guardian ad litem shall:
(1) Be the legal representative of the child at the
hearing, and may examine, cross-examine, subpoena witnesses
and offer testimony;
(2) Prior to the hearing, conduct all necessary
interviews with persons having contact with or knowledge of
the child in order to ascertain the child's wishes,
feelings, attachments and attitudes. If appropriate, the
child should be interviewed;
(3) Review relevant medical, educational, and
therapeutic records and consult treating professionals when
appropriate, assess special medical or developmental needs,
and evaluate household stability and continuity of care; and
(4) Request the juvenile officer to cause a petition
to be filed in the juvenile division of the circuit court if
the guardian ad litem believes the child alleged to be
abused or neglected is in danger.
29
4. The guardian ad litem shall submit a written report
summarizing the investigative steps taken and the factual
basis for any recommendations. The court shall review the
report to ensure compliance with the provisions of this
section and any other duties required under law prior to
adopting any of the recommendations contained within.
5. The appointing judge shall require the guardian ad
litem to faithfully discharge such guardian ad litem's
duties, and upon failure to do so shall discharge such
guardian ad litem and appoint another. The judge in making
appointments pursuant to this section shall give preference
to persons who served as guardian ad litem for the child in
the earlier proceeding, unless there is a reason on the
record for not giving such preference.
[5.] 6. The guardian ad litem shall be awarded a
reasonable fee for such services to be set by the court.
The court, in its discretion, may:
(1) Issue a direct payment order to the parties. If a
party fails to comply with the court's direct payment order,
the court may find such party to be in contempt of court; or
(2) Award such fees as a judgment to be paid by any
party to the proceedings or from public funds. Such an
award of guardian fees shall constitute a final judgment in
favor of the guardian ad litem. Such final judgment shall
be enforceable against the parties in accordance with
chapter 513.
7. A guardian ad litem appointed under this section
shall have received training in child development, trauma-
informed practices, domestic violence dynamics, coercive
control, mental health disorders affecting parenting
capacity, and considerations for children with special
needs. Such training may be part of any training or
30
education otherwise required of a guardian ad litem under
law.
456.4-420. 1. If a trust instrument containing a no-
contest clause is or has become irrevocable, an interested
person may file a petition to the court for [an
interlocutory] a determination whether a particular [motion,
petition, or other] claim for relief by the interested
person would trigger application of the no-contest clause
[or would otherwise trigger a forfeiture] that is
enforceable under applicable law and public policy.
2. The petition described in subsection 1 of this
section shall be verified under oath. The petition [may]
shall be filed by an interested person either as a separate
judicial proceeding, or brought with other claims for relief
in a single judicial proceeding, all in the manner
prescribed generally for such proceedings under this
chapter. If a petition is joined with other claims for
relief, the interested person shall seek, and the court
shall enter, its order or judgment on the petition before
proceeding any further with [any other claim for relief
joined therein] the matter. In ruling on such a petition,
the court shall consider the text of the clause, the context
to the terms of the trust instrument as a whole, and in the
context of the verified factual allegations in the
petition. No evidence beyond the pleadings and the trust
instrument shall be taken except as required to resolve an
ambiguity in the no-contest clause.
3. An order or judgment [determining a petition]
making a determination described in subsection 1 of this
section shall have the effect set forth in subsections 4 and
5 of this section, and shall be subject to appeal as with
other final judgments. [If the] An order that disposes of
fewer than all claims for relief in a [judicial]
31
proceeding[, that order] under this section is subject to
[interlocutory] immediate appeal in accordance with the
applicable rules for taking such an appeal. If an
[interlocutory] appeal is taken, the court may stay the
pending judicial proceeding until final disposition of said
appeal on such terms and conditions as the court deems
reasonable and proper under the circumstances. A final
ruling on the applicability of a no-contest clause shall not
preclude any later filing and adjudication of other claims
related to the trust.
4. An order or judgment, in whole or in part, on a
petition described in subsection 1 of this section shall
result in the no-contest clause being enforceable to the
extent of the court's ruling, and shall govern application
of the no-contest clause to the extent that the interested
person then proceeds forward with the claims described
therein. In the event such an [interlocutory] order or
judgment is vacated, reversed, or otherwise modified on
appeal, no interested person shall be prejudiced by any
reliance, through action, inaction, or otherwise, on the
order or judgment prior to final disposition of the appeal.
5. An order or judgment shall have effect [only] as to
the claims, specific trust terms, and factual basis recited
in the petition, and shall relate to all actions taken by
all parties in the suit under the Missouri supreme court
rules of civil procedure and this chapter. If claims are
later filed or amended that are materially different than
those upon which the order or judgment is based, then to the
extent such new claims are raised, the party in whose favor
the order or judgment was entered shall have no protection
from enforcement of the no-contest clause otherwise afforded
by the order and judgment entered under this section.
32
6. For purposes of this section, a "no-contest clause"
shall mean a provision in a trust instrument purporting to
rescind a donative transfer to, or a fiduciary appointment
of, any person, or that otherwise effects a forfeiture of
some or all of an interested person's beneficial interest in
a trust estate as a result of some action taken by the
beneficiary. This definition shall not be construed in any
way as determining whether a no-contest clause is
enforceable under applicable law and public policy in a
particular factual situation. As used in this section, the
term "no-contest clause" shall also mean an "in terrorem
clause".
7. A no-contest clause is not enforceable against an
interested person in[, but not limited to,] the following
circumstances:
(1) Filing a motion, petition, or other claim for
relief objecting to the jurisdiction or venue of the court
over a proceeding concerning a trust, or over any person
joined, or attempted to be joined, in such a proceeding;
(2) Filing a motion, petition, or other claim for
relief concerning an accounting, report, or notice that has
or should have been made by a trustee, provided the
interested person otherwise has standing to do so under
applicable law, including, but not limited to, section 456.6-
603;
(3) Filing a motion, petition, or other claim for
relief under chapter 475 concerning the appointment of a
guardian or conservator for the settlor;
(4) Filing a motion, petition, or other claim for
relief under chapter 404 concerning the settlor;
(5) Disclosure to any person of information concerning
a trust instrument or that is relevant to a proceeding
before the court concerning the trust instrument or property
33
of the trust estate, unless such disclosure is otherwise
prohibited by law;
(6) Filing a motion, pleading, or other claim for
relief seeking approval of a nonjudicial settlement
agreement concerning a trust instrument, as set forth in
section 456.1-111;
(7) [To the extent] Filing a petition [under
subsection 1 of] pursuant to this section, provided the
petition is limited to the [procedure] procedures and
[purpose] purposes described [therein] in this section;
(8) Participation in a suit consistent with the
Missouri supreme court rules of civil procedure by any
interested person where the interested person has not
asserted any affirmative claim for relief;
(9) As to the interested persons party to an action,
to the extent the court determines that the application of
the no-contest clause is void or unenforceable as against
the public policy of this state;
(10) The scope of the no-contest clause does not
include the factual allegations of the petition as they
apply to the specific terms of the trust; and
(11) A no-contest clause that seeks to cause a
forfeiture against a beneficiary challenging a trust term
that would otherwise be prohibited under subsection 2 of
section 456.1-105 or section 456.10-1008.
8. An interested person that does not seek a
determination in accordance with the provisions of this
section is not thereafter prohibited in any manner from
challenging the validity or application of a no-contest
clause in a proceeding without the protections afforded by
this section.
34
9. In any proceeding brought under this section, the
court may award costs, expenses, and attorneys' fees to any
party, as provided in section 456.10-1004.
469.399. Sections 469.399 to 469.487 shall be known
and may be cited as the "Missouri Uniform Fiduciary Income
and Principal Act".
469.401. As used in sections [469.401] 469.399 to
[469.467] 469.487, the following terms mean:
(1) "Accounting period", a calendar year, unless
[another twelve-month period is selected by] a fiduciary
selects another period of twelve calendar months or
approximately twelve calendar months. The term "accounting
period" includes a [portion] part of a calendar year or
[other twelve-month] another period [that] of twelve
calendar months or approximately twelve calendar months that
begins when an income interest begins or ends when an income
interest ends;
(2) "Asset-backed security", a security that is
serviced primarily by the cash flows of a discrete pool of
fixed or revolving receivables or other financial assets
that by their terms convert into cash within a finite time.
The term "asset-backed security" includes rights or other
assets that ensure the servicing or timely distribution of
proceeds to the holder of the asset-backed security. The
term "asset-backed security" does not include an asset to
which section 469.423, 469.437, or 469.447 applies;
(3) "Beneficiary", includes:
(a) For a trust:
a. A current beneficiary, including a current income
beneficiary and a beneficiary that may receive only
principal;
b. A remainder beneficiary; and
c. Any other successor beneficiary;
35
(b) For an estate, an heir, legatee, and devisee [of a
decedent's estate, and an income beneficiary and a remainder
beneficiary of a trust, including any type of entity that
has a beneficial interest in either an estate or a trust];
and
(c) For a life estate or term interest, a person that
holds a life estate, term interest, or remainder or other
interest following a life estate or term interest;
(4) "Court", any court in this state having
jurisdiction relating to a trust, estate, life estate, or
other term interest described in subdivision (2) of
subsection 1 of section 469.402;
(5) "Current income beneficiary", a beneficiary to
which a fiduciary may distribute net income, whether or not
the fiduciary also may distribute principal to the
beneficiary;
(6) "Distribution", a payment or transfer by a
fiduciary to a beneficiary in the beneficiary's capacity as
a beneficiary, made under the terms of the trust, without
consideration other than the beneficiary's right to receive
the payment or transfer under the terms of the trust. The
terms "distribute", "distributed", and "distributee" have
corresponding meanings;
(7) "Estate", a decedent's estate. The term "estate"
includes the property of the decedent as the estate is
originally constituted and the property of the estate as it
exists at any time during administration;
[(3)] (8) "Fiduciary", includes a trustee, trust
protector determined under section 456.8-808, personal
representative, [trustee, executor, administrator, successor
personal representative, special administrator and any other
person performing substantially the same function] life
tenant, holder of a term interest, and person acting under a
36
delegation from a fiduciary. The term "fiduciary" includes
a person that holds property for a successor beneficiary
whose interest may be affected by an allocation of receipts
and expenditures between income and principal. If there are
two or more cofiduciaries, the term "fiduciary" includes all
cofiduciaries acting under the terms of the trust and
applicable law;
[(4)] (9) "Income", money or other property [that] a
fiduciary receives as current return from [a] principal
[asset, including a portion]. The term "income" includes a
part of receipts from a sale, exchange, or liquidation of a
principal asset, [as] to the extent provided in sections
469.423 to 469.449;
[(5) "Income beneficiary", a person to whom net income
of a trust is or may be payable;
(6)] (10) "Income interest", the right of [an] a
current income beneficiary to receive all or part of net
income, whether the terms of the trust require [it] the net
income to be distributed or authorize [it] the net income to
be distributed in the [trustee's] fiduciary's discretion.
The term "income interest" includes the right of a current
beneficiary to use property held by a fiduciary;
(11) "Independent person", a person that is not:
(a) For a trust:
a. A qualified beneficiary as defined in section 456.1-
103;
b. A settlor of the trust; or
c. An individual whose legal obligation to support a
beneficiary may be satisfied by a distribution from the
trust;
(b) For an estate, a beneficiary;
37
(c) A spouse, parent, brother, sister, or issue of an
individual described in paragraph (a) or (b) of this
subdivision;
(d) A corporation, partnership, limited liability
company, or other entity in which persons described in
paragraphs (a) to (c) of this subdivision, in the aggregate,
have voting control; or
(e) An employee of a person described in paragraph
(a), (b), (c), or (d) of this subdivision;
[(7)] (12) "Mandatory income interest", the right of
[an] a current income beneficiary to receive net income that
the terms of the trust require the fiduciary to distribute;
[(8)] (13) "Net income", [if section 469.411 applies
to the trust, the unitrust amount, or if section 469.411
does not apply to the trust,] the total [receipts allocated
to income] allocations during an accounting period to income
under the terms of a trust and sections 469.399 to 469.487
minus the disbursements [made from income during the same
period, plus or minus transfers pursuant to sections 469.401
to 469.467 to or from income] during the [same] accounting
period, other than distributions, allocated to income under
the terms of the trust and sections 469.399 to 469.487. To
the extent the trust is a unitrust under sections 469.471 to
469.487, the term "net income" means the unitrust amount
determined under sections 469.471 to 469.487. The term "net
income" includes an adjustment from principal to income
under section 469.405. The term "net income" does not
include an adjustment from income to principal under section
469.405;
[(9)] (14) "Person", an individual, [corporation,
business trust,] estate, trust, [partnership, limited
liability company, association, joint venture] business or
nonprofit entity, public corporation, government[,] or
38
governmental subdivision, agency, or instrumentality,
[public corporation] or [any] other legal [or commercial]
entity;
(15) "Personal representative", an executor,
administrator, successor personal representative, special
administrator, or person that performs substantially the
same function with respect to an estate under the law
governing the person's status;
[(10)] (16) "Principal", property held in trust for
distribution to [a remainder], production of income for, or
use by a current or successor beneficiary [when the trust
terminates];
[(11) "Qualified beneficiary", a beneficiary defined
in section 456.1-103;
(12) "Remainder beneficiary", a person entitled to
receive principal when an income interest ends;
(13)] (17) "Record", information that is inscribed on
a tangible medium or that is stored in an electronic or
other medium and is retrievable in perceivable form;
(18) "Settlor", a person, including a testator, that
creates or contributes property to a trust. If more than
one person creates or contributes property to a trust, the
term "settlor" includes each person, to the extent of the
trust property attributable to that person's contribution,
except to the extent another person has the power to revoke
or withdraw that portion;
(19) "Special tax benefit":
(a) Exclusion of a transfer to a trust from gifts
described in 26 U.S.C. Section 2503(b), as amended, because
of the qualification of an income interest in the trust as a
present interest in property;
(b) Status as a qualified subchapter S trust described
in 26 U.S.C. Section 1361(d)(3), as amended, at a time the
39
trust holds stock of an S corporation described in 26 U.S.C.
Section 1361(a)(1), as amended;
(c) An estate or gift tax marital deduction for a
transfer to a trust under 26 U.S.C. Section 2056 or 2523, as
amended, which depends or depended in whole or in part on
the right of the settlor's spouse to receive the net income
of the trust;
(d) Exemption in whole or in part of a trust from the
federal generation-skipping transfer tax imposed by 26
U.S.C. Section 2601, as amended, because the trust was
irrevocable on September 25, 1985, if there is any
possibility that:
a. A taxable distribution, as defined in 26 U.S.C.
Section 2612(b), as amended, could be made from the trust; or
b. A taxable termination, as defined in 26 U.S.C.
Section 2612(a), as amended, could occur with respect to the
trust; or
(e) An inclusion ratio, as defined in 26 U.S.C.
Section 2642(a), as amended, of the trust which is less than
one, if there is any possibility that:
a. A taxable distribution, as defined in 26 U.S.C.
Section 2612(b), as amended, could be made from the trust; or
b. A taxable termination, as defined in 26 U.S.C.
Section 2612(a), as amended, could occur with respect to the
trust;
(20) "Successive interest", the interest of a
successor beneficiary;
(21) "Successor beneficiary", a person entitled to
receive income or principal or to use property when an
income interest or other current interest ends;
(22) "Terms of a trust":
40
(a) Except as otherwise provided in paragraph (b) of
this subdivision, the manifestation of the settlor's [or
decedent's] intent regarding a trust's provisions as:
a. Expressed in [a manner which is] the trust
instrument; or
b. Established by other evidence that would be
admissible [as proof] in a judicial proceeding[, whether by
written or spoken words or by conduct];
(b) The trust's provisions as established, determined,
or amended by:
a. A trustee or trust director in accordance with
applicable law;
b. Court order; or
c. A nonjudicial settlement agreement under section
456.1-111;
(c) For an estate, a will; or
(d) For a life estate or term interest, the
corresponding manifestation of the rights of the
beneficiaries;
(23) "Trust":
(a) Includes:
a. An express trust, private or charitable, with
additions to the trust, wherever and however created; and
b. A trust created or determined by judgment or decree
under which the trust is to be administered in the manner of
an express trust; and
(b) Does not include:
a. A constructive trust;
b. A resulting trust, conservatorship, guardianship,
multi-party account, custodial arrangement for a minor,
business trust, voting trust, security arrangement,
liquidation trust, or trust for the primary purpose of
paying debts, dividends, interest, salaries, wages, profits,
41
pensions, retirement benefits, or employee benefits of any
kind; or
c. An arrangement under which a person is a nominee,
escrowee, or agent for another;
[(14)] (24) "Trustee", a person, other than a personal
representative, that owns or holds property for the benefit
of a beneficiary. The term "trustee" includes an original,
additional, or successor trustee, whether or not appointed
or confirmed by a court;
[(15) "Unitrust amount", net income as defined by
section 469.411]
(25) "Will", any testamentary instrument recognized by
applicable law that makes a legally effective disposition of
an individual's property, effective at the individual's
death. The term "will" includes a codicil or other
amendment to a testamentary instrument.
469.402. 1. Except as otherwise provided in the terms
of a trust or sections 469.399 to 469.487, the provisions of
sections [456.3-301] 469.399 to [456.3-305 shall] 469.487
apply to [sections 469.401 to 469.467 for all purposes]:
(1) A trust or estate; and
(2) A life estate or other term interest in which the
interest of one or more persons will be succeeded by the
interest of one or more other persons.
2. Except as otherwise provided in the terms of a
trust or sections 469.399 to 469.487, the provisions of
sections 469.399 to 469.487 apply when this state is the
principal place of administration of a trust or estate or
the situs of property that is not held in a trust or estate
and is subject to a life estate or other term interest
described in subdivision (2) of subsection 1 of this
section. By accepting the trusteeship of a trust having its
principal place of administration in this state or by moving
42
the principal place of administration of a trust to this
state, the trustee submits to the application of sections
469.399 to 469.487 to any matter within the scope of
sections 469.399 to 469.487 involving the trust.
469.403. 1. In [allocating receipts and disbursements
to or between principal and income, and with respect to any
matter within the scope of] making an allocation or
determination or exercising discretion under sections
469.413 to 469.421, a fiduciary shall:
(1) [Shall] Act in good faith, based on what is fair
and reasonable to all beneficiaries;
(2) Administer a trust or estate [under] impartially,
except to the extent the terms of the trust manifest an
intent that the fiduciary shall or [the will] may favor one
or more beneficiaries;
(3) Administer the trust or estate in accordance with
the terms of the trust, even if there is a different
provision in sections [469.401] 469.399 to [469.467]
469.487; and
[(2) May] (4) Administer [a] the trust or estate [by
exercising] in accordance with sections 469.399 to 469.487,
except to the extent the terms of the trust provide
otherwise or authorize the fiduciary to determine otherwise.
2. A fiduciary's allocation, determination, or
exercise of discretion pursuant to sections 469.399 to
469.487 is presumed to be fair and reasonable to all
beneficiaries. A fiduciary may exercise a discretionary
power of administration given to the fiduciary by the terms
of the trust [or the will, even if the], and an exercise of
the power that produces a result different from a result
required or permitted by sections [469.401] 469.399 to
[469.467;] 469.487 does not create an inference that the
fiduciary abused the fiduciary's discretion.
43
[(3) Shall administer a trust or estate pursuant]
3. A fiduciary shall:
(1) Add a receipt to [sections 469.401 to 469.467 if]
principal, to the extent neither the terms of the trust [or
the will do not contain a different provision or do not
give] nor sections 469.399 to 469.487 allocate the
[fiduciary a discretionary power of administration] receipt
between income and principal; and
[(4) Shall add a receipt or] (2) Charge a
disbursement to principal, to the extent [that] neither the
terms of the trust [and] nor sections [469.401] 469.399 to
[469.467 do not provide a rule for allocating the receipt
or] 469.487 allocate the disbursement [to or] between
[principal and] income and principal.
[2. In exercising the power to adjust pursuant to
section 469.405 or a discretionary power of administration
regarding a matter within the scope of sections 469.401 to
469.467, whether granted by the terms of a trust, a will, or
sections 469.401 to 469.467, 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
intent that the fiduciary shall or may favor one or more of
the beneficiaries. A determination in accordance with
sections 469.401 to 469.467 is presumed to be fair and
reasonable to all of the beneficiaries]
4. A fiduciary may exercise the power to adjust under
section 469.405, convert an income trust to a unitrust under
subdivision (1) of subsection 1 of section 469.475, change
the percentage or method used to calculate a unitrust amount
under subdivision (2) of subsection 1 of section 469.475, or
convert a unitrust to an income trust under subdivision (3)
of subsection 1 of section 469.475, if the fiduciary
44
determines the exercise of the power will assist the
fiduciary to administer the trust or estate impartially.
5. Factors the fiduciary shall consider in making the
determination under subsection 4 of this section include:
(1) The terms of the trust;
(2) The nature, distribution standards, and expected
duration of the trust;
(3) The effect of the allocation rules, including
specific adjustments between income and principal, under
sections 407.413 to 407.461;
(4) The desirability of liquidity and regularity of
income;
(5) The desirability of the preservation and
appreciation of principal;
(6) The extent to which an asset is used or may be
used by a beneficiary;
(7) The increase or decrease in the value of principal
assets, reasonably determined by the fiduciary;
(8) Whether and to what extent the terms of the trust
give the fiduciary power to accumulate income or invade
principal or prohibit the fiduciary from accumulating income
or invading principal;
(9) The extent to which the fiduciary has accumulated
income or invaded principal in preceding accounting periods;
(10) The effect of current and reasonably expected
economic conditions; and
(11) The reasonably expected tax consequences of the
exercise of the power.
469.404. 1. As used in this section, the term
"fiduciary decision" means:
(1) A fiduciary's allocation between income and
principal or other determination regarding income and
45
principal required or authorized by the terms of the trust
or sections 469.399 to 469.487;
(2) The fiduciary's exercise or nonexercise of a
discretionary power regarding income and principal granted
by the terms of the trust or sections 469.399 to 469.487,
including the power to adjust under section 469.405, convert
an income trust to a unitrust under subdivision (1) of
subsection 1 of section 469.475, change the percentage or
method used to calculate a unitrust amount under subdivision
(2) of subsection 1 of section 469.475, or convert a
unitrust to an income trust under subdivision (3) of
subsection 1 of section 469.475; or
(3) The fiduciary's implementation of a decision
described in subdivision (1) or (2) of this subsection.
2. The court shall not order a fiduciary to change a
fiduciary decision unless the court determines that the
fiduciary decision was an abuse of the fiduciary's
discretion.
3. If the court determines that a fiduciary decision
was an abuse of the fiduciary's discretion, the court may
order a remedy authorized by law, including under section
456.10-1001. To place the beneficiaries in the positions
the beneficiaries would have occupied if there had not been
an abuse of the fiduciary's discretion, the court may order:
(1) The fiduciary to exercise or refrain from
exercising the power to adjust under section 469.405;
(2) The fiduciary to exercise or refrain from
exercising the power to convert an income trust to a
unitrust under subdivision (1) of subsection 1 of section
469.475, change the percentage or method used to calculate a
unitrust amount under subdivision (2) of subsection 1 of
section 469.475, or convert a unitrust to an income trust
under subdivision (3) of subsection 1 of section 469.475;
46
(3) The fiduciary to distribute an amount to a
beneficiary;
(4) A beneficiary to return some or all of a
distribution; or
(5) The fiduciary to withhold an amount from one or
more future distributions to a beneficiary.
4. On petition by a fiduciary for instruction, the
court may determine whether a proposed fiduciary decision
will result in an abuse of the fiduciary's discretion. If
the petition describes the proposed decision, contains
sufficient information to inform the beneficiary of the
reasons for making the proposed decision and the facts on
which the fiduciary relies, and explains how the beneficiary
will be affected by the proposed decision, a beneficiary
that opposes the proposed decision has the burden to
establish that it will result in an abuse of the fiduciary's
discretion.
469.405. 1. [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 shall be distributed to a beneficiary by referring to
the trust's income, and the trustee determines, after
applying subsection 1 of section 469.403, that the trustee
is unable to comply with subsection 2 of section 469.403]
Except as otherwise provided in the terms of a trust or this
section, a fiduciary, in a record, without court approval,
may adjust between income and principal if the fiduciary
determines the exercise of the power to adjust will assist
the fiduciary to administer the trust or estate impartially.
2. This section does not create a duty to exercise or
consider the power to adjust under subsection 1 of this
47
section or to inform a beneficiary about the applicability
of this section.
3. A fiduciary that in good faith exercises or fails
to exercise the power to adjust under subsection 1 of this
section is not liable to a person affected by the exercise
or failure to exercise.
[2.] 4. In deciding whether and to what extent to
exercise the power [conferred by] to adjust under subsection
1 of this section, a [trustee] fiduciary shall consider all
factors the fiduciary considers relevant [to the trust and
its beneficiaries], including [the following] relevant
factors [to the extent relevant:] in subsection 5 of section
469.403 and the application of sections 469.423, 469.435,
and 469.445.
[(1) The nature, purpose and expected duration of the
trust;
(2) The intent of the settlor;
(3) The identity and circumstances of the
beneficiaries;
(4) The needs for liquidity, regularity of income, and
preservation and appreciation of capital;
(5) The assets held in the trust, including the extent
to which such assets consist of financial assets, interests
in closely held enterprises, tangible and intangible
personal property, or real property, and the extent to which
such assets are used by a beneficiary, and whether such
assets were purchased by the trustee or received from the
settlor;
(6) The net amount allocated to income pursuant to
sections 469.401 to 469.467, other than this section, 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;
48
(7) Whether and to what extent the terms of the trust
give the trustee the power to 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) The actual and anticipated effect of economic
conditions on principal and income and effects of inflation
and deflation; and
(9) The anticipated tax consequences of an adjustment.
3.] 5. A [trustee may] fiduciary shall not exercise
the power under subsection 1 of this section to make an
adjustment or under section 469.435 to make a determination
that an allocation is insubstantial if:
(1) [That diminishes the income interest in a trust
which requires all of the income to be paid at least
annually to a spouse and for which an estate tax or gift tax
marital deduction would be 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 adjustment or determination
would reduce the amount payable to a current income
beneficiary from a trust that qualifies for a special tax
benefit, except to the extent the adjustment is made to
provide for a reasonable apportionment of the total return
of the trust between the current income beneficiary and
successor beneficiaries;
(2) The adjustment or determination would change the
amount payable to a beneficiary, as a fixed annuity or a
fixed fraction of the value of the trust assets, under the
terms of the trust;
49
[(4) From any] (3) The adjustment or determination
would reduce an amount that is permanently set aside for a
charitable [purposes] purpose under [a will or] the terms of
[a] the trust [to the extent that the existence of the power
to adjust would change the character of the amount], unless
both income and principal are set aside for [federal income,
gift or estate tax purposes] the charitable purpose;
[(5) If ] (4) Possessing or exercising the power [to
make an adjustment causes an individual] would cause a
person to be treated as the owner of all or part of the
trust for federal income tax purposes[, and the individual
would not be treated as the owner if the trustee did not
possess the power to make an adjustment];
[(6) If ] (5) Possessing or exercising the power [to
make an adjustment causes] would cause all or part of the
value of the trust assets to be included [for estate tax
purposes] in the gross estate of an individual [who has] for
federal estate tax purposes;
(6) Possessing or exercising the power [to remove or
appoint a trustee, or both,] would cause an individual to be
treated as making a gift for federal gift tax purposes;
(7) The fiduciary is not an independent person;
(8) The trust is irrevocable and [the assets would not
be included in the estate of the individual if the trustee
did not possess] provides for income to be paid to the
settlor and possessing or exercising the power [to make an
adjustment] would cause the adjusted principal or income to
be considered an available resource or available income
under a public-benefit program; or
[(7) If the trustee is a beneficiary of the trust; or
(8) If the trustee is not a beneficiary, but the
adjustment would benefit the trustee directly or indirectly]
50
(9) The trust is a unitrust under sections 469.471 to
469.487.
[4.] 6. If [subdivision (5), (6), (7) or (8) of]
subsection [3] 5 of this section applies to a [trustee and
there is more than one trustee, a cotrustee to whom the
provision does] fiduciary:
(1) A cofiduciary to which subdivisions (4) to (7) of
subsection 5 of this section do not apply may [make]
exercise the [adjustment] power to adjust unless the
exercise of the power by the remaining [trustee or trustees]
cofiduciary or cofiduciaries is not permitted by the terms
of the trust or law other than sections 469.399 to 469.487;
and
(2) If there is no cofiduciary to which subdivisions
(4) to (7) of subsection 5 of this section do not apply, the
fiduciary may appoint a cofiduciary to which subdivisions
(4) to (7) of subsection 5 of this section do not apply,
which may be a special fiduciary with limited powers, and
the appointed cofiduciary may exercise the power to adjust
under subsection 1 of this section, unless the appointment
of a cofiduciary or the exercise of the power by a
cofiduciary is not permitted by the terms of the trust or
law other than under sections 469.399 to 469.487.
[5.] 7. A [trustee] fiduciary may release [the entire
power conferred by subsection 1 of this section, or may
release only] or delegate to a cofiduciary 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] under subsection 1 of this
section if the fiduciary determines that the fiduciary's
possession or exercise of the power will or may:
(1) Cause a result described in subdivisions (1) to
(6) or subdivision (8) of subsection [3] 5 of this section
51
[,]; or [if the trustee determines that possessing or
exercising the power will or may]
(2) Deprive the trust of a tax benefit or impose a tax
burden not described in subdivisions (1) to (6) of
subsection [3] 5 of this section. [The release may be
permanent or for]
8. A fiduciary's release or delegation to a
cofiduciary under subsection 7 of this section of the power
to adjust under subsection 1 of this section:
(1) Shall be in a record;
(2) Applies to the entire power, unless the release or
delegation provides a limitation, which may be a limitation
to the power to adjust:
(a) From income to principal;
(b) From principal to income;
(c) For specified property; or
(d) In specified circumstances;
(3) For a delegation, may be modified by a
redelegation under this subsection by the cofiduciary to
which the delegation is made; and
(4) Subject to subdivision (3) of this subsection, is
permanent unless the release or delegation provides a
specified period, including a period measured by the life of
an individual or the lives of more than one individual.
[6.] 9. Terms of a trust that deny or limit the power
[of a trustee] to [make an adjustment] adjust between income
and 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] expressly deny [the
trustee] or limit the power [of adjustment conferred by] to
adjust under subsection 1 of this section.
10. The exercise of the power to adjust under
subsection 1 of this section in any accounting period may
52
apply to the current period, the immediately preceding
period, and one or more subsequent periods.
11. A description of the exercise of the power to
adjust under subsection 1 of this section shall be:
(1) Included in a report, if any, sent to
beneficiaries under subsection 3 of section 456.8-813; or
(2) Communicated at least annually to the qualified
beneficiaries defined in section 456.1-103 other than all
beneficiaries that receive or are entitled to receive income
from the trust or would be entitled to receive a
distribution of principal if the trust were terminated at
the time the notice is sent, assuming no power of
appointment is exercised.
469.413. [After a decedent dies, in the case] 1. This
section applies when:
(1) The death of an individual results in the creation
of an estate[, or after] or trust; or
(2) An income interest in a trust [ends, the following
rules apply:] terminates, whether the trust continues or is
distributed.
[(1)] 2. A fiduciary of an estate or [of a
terminating] trust with an income interest that terminates
shall determine, under subsection 7 of this section and
sections 469.417 to 469.462, the amount of net income and
net principal receipts received from property specifically
given to a beneficiary [pursuant to the rules in sections
469.417 to 469.461 which apply to trustees and the rules in
subdivision (5) of this section]. The fiduciary shall
distribute the net income and net principal receipts to the
beneficiary [who] that is to receive the specific
property[;].
[(2)] 3. A fiduciary shall determine the [remaining]
income and net income of [a decedent's] an estate or [a
53
terminating] income interest [pursuant to the rules in] in a
trust that terminates, other than the amount of net income
determined under subsection 2 of this section, under
sections 469.417 to [469.461 which apply to trustees]
469.462 and by:
[(a)] (1) Including in net income all income from
property used or sold to discharge liabilities;
[(b)] (2) 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] estate and
inheritance taxes and other taxes imposed because of the
decedent's death, but the fiduciary may pay [those] the
expenses from income of property passing to a trust for
which the fiduciary claims [an] a federal estate tax marital
or charitable deduction only to the extent [that]:
(a) The payment of [those] the expenses from income
will not cause the reduction or loss of the deduction; [and]
or
(b) The fiduciary makes an adjustment under subsection
2 of section 469.462; and
[(c)] (3) Paying from principal [all] other
disbursements made or incurred in connection with the
settlement of [a decedent's] the estate or the winding up of
[a terminating] an income interest that terminates,
including:
(a) To the extent authorized by the decedent's will,
the terms of the trust, or applicable law, debts, funeral
expenses, disposition of remains, family allowances, estate
and [death] inheritance taxes, and other taxes imposed
because of the decedent's death; and
(b) Related penalties that are apportioned, by the
decedent's will, the terms of the trust, or applicable law,
54
to the estate or [terminating] income interest [by the will,
the terms of the trust, or applicable law;
(3) A fiduciary shall distribute to a beneficiary who
receives a pecuniary amount outright the interest or any
other amount provided by the will, the terms of the trust,
or in the absence of any such provisions, the provisions of
section 473.633, from net income determined pursuant to
subdivision (2) of this section or from principal to the
extent that net income is insufficient] that terminates.
4. If a decedent's will, the terms of a trust, or
applicable law provides for the payment of interest or the
equivalent of interest to a beneficiary that receives a
pecuniary amount outright, the fiduciary shall make the
payment from net income determined under subsection 3 of
this section or from principal to the extent net income is
insufficient.
5. If a beneficiary is to receive a pecuniary amount
outright from a trust after an income interest ends because
of an income beneficiary's death, and no payment of interest
or [other amount] the equivalent of interest is provided for
by the terms of the trust or applicable law, the fiduciary
shall [distribute] pay the interest or [other amount] the
equivalent of interest to which the beneficiary would be
entitled under applicable law if the pecuniary amount were
required to be paid under a will[;].
[(4)] 6. A fiduciary shall distribute [the] net income
remaining after [distributions] payments required by
[subdivision (3)] subsections 4 and 5 of this section in the
manner described in section 469.415 to all other
beneficiaries, including a beneficiary [who] that receives a
pecuniary amount in trust, even if the beneficiary holds an
unqualified power to withdraw assets from the trust or other
55
presently exercisable general power of appointment over the
trust[;].
[(5)] 7. A fiduciary [may] shall not reduce principal
or income receipts from property described in [subdivision
(1)] subsection 2 of this section because of a payment
described in sections 469.451 and 469.453 to the extent
[that] the decedent's 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] shall be determined by including
[all of] the amounts the fiduciary receives or pays [with
respect to] regarding the property, whether [those amounts]
the amount accrued or became due before, on, or after the
date of [a] the decedent's death or an income interest's
terminating event, and [by] making a reasonable provision
for [amounts that the fiduciary believes] an amount the
estate or [terminating] income interest may become obligated
to pay after the property is distributed.
469.415. 1. [Each] Except to the extent sections
469.471 to 469.487 apply for a beneficiary that is a trust,
each beneficiary described in [subdivision (4)] subsection 6
of section 469.413 is entitled to receive a [portion] share
of the net income equal to the beneficiary's 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] which
this section applies, each beneficiary, including [one who]
a beneficiary that does not receive part of the
distribution, is entitled, as of each distribution date, to
a share of the net income the fiduciary [has] received after
the [date of] decedent's death [or], an income interest's
56
other terminating event, or [earlier] the preceding
distribution [date but has not distributed as of the current
distribution date] by the fiduciary.
2. In determining a beneficiary's share of net income
under subsection 1 of this section, the following rules
apply:
(1) The beneficiary is entitled to receive a [portion]
share of the net income equal to the beneficiary's
fractional interest in the undistributed principal assets
immediately before the distribution date[, including assets
that later may be sold to meet principal obligations];
(2) The beneficiary's fractional interest [in the
undistributed principal assets] under subdivision (1) of
this subsection shall be calculated [without regard to
property specifically given to a beneficiary and property
required to pay pecuniary amounts not in trust;
(3) The beneficiary's fractional interest in the
undistributed principal assets shall be calculated]:
(a) On the [basis of the] aggregate value of [those]
the assets as of the distribution date without reducing the
value by any unpaid principal obligation; and
(b) Without regard to:
a. Property specifically given to a beneficiary under
the decedent's will or the terms of the trust; and
b. Property required to pay pecuniary amounts not in
trust; and
[(4)] (3) The distribution date [for purposes of this
section] under subdivision (1) of this subsection 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 the
assets are [actually] distributed.
3. [If] To the extent a fiduciary does not distribute
under this section all [of] the collected but undistributed
57
net income to each [person] beneficiary as of a distribution
date, the fiduciary shall maintain [appropriate] records
showing the interest of each beneficiary in [that] the net
income.
4. If this section applies to income from an asset, a
fiduciary may apply the rules in this section[, to the
extent that the fiduciary considers it appropriate,] to net
gain or loss realized from the disposition of the asset
after the [date of] decedent's death [or], an income
interest's terminating event, or [earlier] the preceding
distribution [date from the disposition of a principal asset
if this section applies to the income from the asset] by the
fiduciary.
469.417. 1. An income beneficiary is entitled to net
income in accordance with the terms of the trust from the
date [on which the] an income interest begins. [An] The
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]:
(1) The trust for the current income beneficiary; or
(2) A successive interest for a successor beneficiary.
2. An asset becomes subject to a trust under
subdivision (1) of subsection 1 of this section:
(1) [On the date it is transferred to the trust in the
case of] For an asset that is transferred to [a] the trust
during the [transferor's] settlor's life, on the date the
asset is transferred;
(2) [On the date of a testator's death in the case of]
For an asset that becomes subject to [a] the trust [by
reason] because of a [will] decedent's death, on the date of
the decedent's death, even if there is an intervening period
of administration of the [testator's] decedent's estate; or
58
(3) [On the date of an individual's death in the case
of] For an asset that is transferred to a fiduciary by a
third party because of [the individual's] a decedent's
death, on the date of the decedent's death.
3. An asset becomes subject to a successive [income]
interest under subdivision (2) of subsection 1 of this
section on the day after the preceding income interest ends,
as determined [pursuant to] under subsection 4 of this
section, even if there is an intervening period of
administration to wind up the preceding income interest.
4. 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] which a [trustee] fiduciary may or
shall distribute income.
469.419. 1. A [trustee] fiduciary shall allocate an
income receipt or disbursement, other than [one] a receipt
to which [subdivision (1)] subsection 2 of section 469.413
applies, to principal if its due date occurs before [a
decedent dies in the case of] the date on which:
(1) For an estate, the decedent died; or [before]
(2) For a trust or successive interest, an income
interest begins [in the case of a trust or successive income
interest].
2. [A trustee shall allocate an income receipt or
disbursement to income if its] If the due date of a periodic
income receipt or disbursement occurs on or after the date
on which a decedent [dies] died or an income interest
[begins and it is a periodic due date. An income] began, a
fiduciary shall allocate the receipt or disbursement to
income.
3. If an income receipt or disbursement is not
periodic or has no due date, a fiduciary shall [be treated]
59
treat the receipt or disbursement under this section as
accruing from day to day [if its due date is not periodic or
it has no due date]. The fiduciary shall allocate to
principal the portion of the receipt or disbursement
accruing before the date on which a decedent [dies] died or
an income interest [begins shall be allocated to principal]
began, and to income the balance [shall be allocated to
income].
[3.] 4. A receipt or disbursement is periodic under
subsections 2 and 3 of this section if:
(1) The receipt or disbursement shall be paid at
regular intervals under an obligation to make payments; or
(2) The payer customarily makes payments at regular
intervals.
5. An item of income or [an] obligation is due under
this section on the date [a payment] the payer is required
to make a payment. If a payment date is not stated, there
is no due date [for the purposes of sections 469.401 to
469.467].
6. Distributions to shareholders or other owners from
an entity to which section 469.423 applies are [deemed to
be] due:
(1) On the date fixed by or on behalf of the entity
for determining [who is] the persons entitled to receive the
distribution [or,];
(2) If no date is fixed, on the [declaration] date
[for] of the decision by or on behalf of the entity to make
the distribution[. A due date is periodic for receipts or
disbursements that shall be paid at regular intervals under
a lease or an obligation to pay interest or if an entity
customarily makes distributions at regular intervals]; or
(3) If no date is fixed and the fiduciary does not
know the date of the decision by or on behalf of the entity
60
to make the distribution, on the date the fiduciary learns
of the decision.
469.421. 1. [For purposes of] As used in this
section, the [phrase] term "undistributed income" means net
income received on or before the date on which an income
interest ends. The [phrase] term "undistributed income"
does not include an item of income or expense that is due or
accrued[,] or net income that has been added or is required
to be added to principal under the terms of the trust.
2. Except as otherwise provided in subsection 3 of
this section, when a mandatory income interest of a
beneficiary ends, the [trustee] fiduciary 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] to the beneficiary or, if
the beneficiary does not survive the date the interest ends,
to the beneficiary's estate.
3. If a beneficiary has an unqualified power to
[revoke] withdraw more than five percent of the value of a
trust immediately before [the] an income interest ends[. In
the latter case,]:
(1) The fiduciary shall allocate to principal the
undistributed income from the portion of the trust that may
be [revoked shall be added to principal] withdrawn; and
(2) Subsection 2 of this section applies only to the
balance of the undistributed income.
[3.] 4. When a [trustee's] fiduciary's obligation to
pay a fixed annuity or a fixed fraction of the value of [the
trust's] assets ends, the [trustee] fiduciary shall prorate
the final payment [if and to the extent] as required [by
applicable law to accomplish a purpose of the trust or its
61
settlor relating] to preserve an income tax, gift tax,
estate tax, or other tax [requirements] benefit.
469.423. 1. [For purposes of] As used in this
section, the [term] following terms mean:
(1) "Capital distribution", an entity distribution of
money that is a:
(a) Return of capital; or
(b) Distribution in total or partial liquidation of
the entity;
(2) "Entity" [means]:
(a) A corporation, partnership, limited liability
company, regulated investment company, real estate
investment trust, common trust fund, or any other
organization [in which a trustee has an interest, other than
a trust or estate to which section 469.425 applies, a
business or activity to which section 469.427 applies, or an
asset-backed security to which section 469.449 applies] or
arrangement in which a fiduciary owns or holds an interest,
whether or not the entity is a taxpayer for federal income
tax purposes; and
(b) The term "entity" does not include:
a. A trust or estate to which section 469.425 applies;
b. A business or other activity to which section
469.427 applies that is not conducted by an entity described
in paragraph (a) of this subdivision;
c. An asset-backed security; or
d. An instrument or arrangement to which section
469.446 applies;
(3) "Entity distribution", a payment or transfer by an
entity made to a person in the person's capacity as an owner
or holder of an interest in the entity.
2. In this section, an attribute or action of an
entity includes an attribute or action of any other entity
62
in which the entity owns or holds an interest, including an
interest owned or held indirectly through another entity.
[2.] 3. Except as otherwise provided in subdivisions
(2) to (4) of subsection 4 of this section, a [trustee]
fiduciary shall allocate to income:
(1) Money received [from] in an entity[.
3. 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]
distribution; and
(2) Tangible personal property of nominal value
received from the entity.
4. A fiduciary shall allocate to principal:
(1) Property received in an entity distribution that
is not:
(a) Money; or
(b) Tangible personal property of nominal value;
(2) Money received in an entity distribution in an
exchange for part or all of the fiduciary's interest in the
entity, to the extent the entity distribution reduces the
fiduciary's interest in the entity relative to the interests
of other persons that own or hold interests in the entity;
(3) Money received in an entity distribution that the
fiduciary determines or estimates is a capital distribution;
and
(4) Money received in an entity distribution from an
entity that is:
63
(a) A regulated investment company or [a] real estate
investment trust if the money [distributed] received is a
capital gain dividend for federal income tax purposes[.
4. Money is received in partial liquidation:
(1) To the extent that the entity, at or near the time
of a distribution, indicates that such money is a
distribution in partial liquidation; or
(2) If]; or
(b) Treated for federal income tax purposes comparably
to the treatment described in paragraph (a) of this
subdivision.
5. A fiduciary may determine or estimate that money
received in an entity distribution is a capital distribution:
(1) By relying, without inquiry or investigation, on a
characterization of the entity distribution provided by or
on behalf of the entity, unless the fiduciary:
(a) Determines, on the basis of information known to
the fiduciary, that the characterization is or may be
incorrect; or
(b) Owns or holds more than fifty percent of the
voting interest in the entity;
(2) By determining or estimating, on the basis of
information known to the fiduciary or provided to the
fiduciary by or on behalf of the entity, that the total
amount of money and property received by the fiduciary in
[a] the entity distribution or a series of related entity
distributions is or will be greater than twenty percent of
the [entity's gross assets, as shown by the entity's year-
end financial statements immediately preceding the initial
receipt.
5. Money is not received in partial liquidation, nor
may it be taken into account pursuant to subdivision (2) of
subsection 4 of this section, to the extent that such money
64
does not exceed the amount of income tax that a trustee or
beneficiary shall pay on taxable income of the entity that
distributes the money.
6. 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 entity's 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] fair market value of the fiduciary's
interest in the entity; or
(3) If neither subdivision (1) nor (2) of this
subsection applies, by considering the factors in subsection
6 of this section and the information known to the fiduciary
or provided to the fiduciary by or on behalf of the entity.
6. In making a determination or estimate under
subdivision (3) of subsection 5 of this section, a fiduciary
may consider:
(1) A characterization of an entity distribution
provided by or on behalf of the entity;
(2) The amount of money or property received in:
(a) The entity distribution; or
(b) What the fiduciary determines is or will be a
series of related entity distributions;
(3) The amount described in subdivision (2) of this
subsection compared to the amount the fiduciary determines
or estimates is, during the current or preceding accounting
periods:
(a) The entity's operating income;
(b) The proceeds of the entity's sale or other
disposition of:
a. All or part of the business or other activity
conducted by the entity;
65
b. One or more business assets that are not sold to
customers in the ordinary course of the business or other
activity conducted by the entity; or
c. One or more assets other than business assets,
unless the entity's primary activity is to invest in assets
to realize gain on the disposition of all or some of the
assets;
(c) If the entity's primary activity is to invest in
assets to realize gain on the disposition of all or some of
the assets, the gain realized on the disposition;
(d) The entity's regular, periodic entity
distributions;
(e) The amount of money the entity has accumulated;
(f) The amount of money the entity has borrowed;
(g) The amount of money the entity has received from
the sources described in sections 469.433, 469.439, 469.441,
and 469.443; and
(h) The amount of money the entity has received from a
source not otherwise described in this subdivision; and
(4) Any other factor the fiduciary determines is
relevant.
7. If, after applying subsections 3 to 6 of this
section, a fiduciary determines that a part of an entity
distribution is a capital distribution but is in doubt about
the amount of the entity distribution that is a capital
distribution, the fiduciary shall allocate to principal the
amount of the entity distribution that is in doubt.
8. If a fiduciary receives additional information
about the application of this section to an entity
distribution before the fiduciary has paid part of the
entity distribution to a beneficiary, the fiduciary may
consider the additional information before making the
66
payment to the beneficiary and may change a decision to make
the payment to the beneficiary.
9. If a fiduciary receives additional information
about the application of this section to an entity
distribution after the fiduciary has paid part of the entity
distribution to a beneficiary, the fiduciary is not required
to change or recover the payment to the beneficiary but may
consider that information in determining whether to exercise
the power to adjust under section 469.405.
469.425. A [trustee] fiduciary shall allocate to
income an amount received as a distribution of income,
including a unitrust distribution under sections 469.471 to
469.487, from a trust or [an] estate in which the [trust]
fiduciary has an interest, other than [a] an interest the
fiduciary purchased [interest] in a trust that is an
investment entity, and shall allocate to principal an amount
received as a distribution of principal from [such a] the
trust or estate. If a [trustee] fiduciary purchases, or
receives from a settlor, 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 469.423,
469.446, or 469.449 [shall apply] applies to a receipt from
the trust.
469.427. 1. [If a trustee who conducts] This section
applies to a business or other activity conducted by a
fiduciary if the fiduciary determines that it is in the
[best interest] interests of [all] the beneficiaries to
account separately for the business or other activity
instead of:
(1) Accounting for [it] the business or other activity
as part of the [trust's] fiduciary's general accounting
records[,]; or
67
(2) Conducting the [trustee] business or other
activity through an entity described in paragraph (a) of
subdivision (2) of subsection 1 of section 469.423.
2. A fiduciary may [maintain separate accounting
records] account separately under this section for [its] the
transactions of a business or other activity, whether or not
[its] assets of the business or other activity are
segregated from other [trust] assets held by the fiduciary.
[2.] 3. A [trustee who] fiduciary that accounts
separately under this section for a business or other
activity:
(1) May determine:
(a) The extent to which the net cash receipts of the
business or other activity shall be retained for:
a. Working capital[,];
b. The acquisition or replacement of fixed assets[,];
and
c. Other reasonably foreseeable needs of the business
or other activity[,]; and
(b) The extent to which the remaining net cash
receipts are accounted for as principal or income in the
[trust's] fiduciary'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] for the trust;
(2) May make a determination under subdivision (1) of
this subsection separately and differently from the
fiduciary's decisions concerning distributions of income or
principal; and
(3) Shall account for the net amount received from the
sale of an asset of the business or other activity, other
than a sale in the ordinary course of the business or other
activity, as principal in the [trust's] fiduciary's general
68
accounting records for the trust, to the extent the
[trustee] fiduciary determines that the net amount received
is no longer required in the conduct of the business or
other activity.
[3.] 4. Activities for which a [trustee may maintain
separate accounting records] fiduciary may account
separately under this section include:
(1) Retail, manufacturing, service, and other
traditional business activities;
(2) Farming;
(3) Raising and selling livestock and other animals;
(4) [Management of] Managing rental properties;
(5) [Extraction of] Extracting minerals, water, and
other natural resources;
(6) Growing and cutting timber [operations]; [and]
(7) [Activities] An activity to which section 469.446,
469.447, or 469.449 applies; and
(8) Any other business conducted by the fiduciary.
469.429. A [trustee] fiduciary shall allocate to
principal:
(1) To the extent not allocated to income [pursuant
to] under sections [469.401] 469.399 to [469.467] 469.487,
[assets] an asset received from [a transferor]:
(a) An individual during the [transferor's]
individual's lifetime[, a decedent's];
(b) An estate[,];
(c) A trust [with a terminating] on termination of an
income interest[,]; or
(d) A payer under a contract naming the [trust or its
trustee] fiduciary as beneficiary;
(2) Except as otherwise provided in sections 469.423
to 469.449, money or other property received from the sale,
exchange, liquidation, or change in form of a principal
69
asset[, including realized profit, subject to sections
469.423 to 469.467];
(3) [Amounts] An amount recovered from a third
[parties] party to reimburse the [trust] fiduciary because
of [disbursements] a disbursement described in [subdivision
(7) of] subsection 1 of section 469.453 or for [other
reasons] another reason to the extent not based on [the]
loss of income;
(4) Proceeds of property taken by eminent domain, [but
a separate award made] except that proceeds awarded for
[the] loss of income [with respect to] in an accounting
period [during which] are income if a current income
beneficiary had a mandatory income interest [is income]
during the period;
(5) Net income received in an accounting period during
which there is no beneficiary to [whom] which a [trustee]
fiduciary may or shall distribute income; and
(6) Other receipts as provided in sections 469.435 to
469.449.
469.431. To the extent [that a trustee accounts] a
fiduciary does not account for [receipts from] the
management of rental property [pursuant to this section] as
a business under section 469.427, the [trustee] fiduciary
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 that is to be applied as rent for future periods[,]:
(1) Shall be added to principal and held subject to
the terms of the lease, except as otherwise provided by law
other than sections 469.399 to 469.487; and
(2) Is not allocated to income or available for
distribution to a beneficiary until the [trustee's]
70
fiduciary's contractual obligations have been satisfied with
respect to that amount.
469.432. 1. This section does not apply to an
obligation to which section 469.437, 469.439, 469.441,
469.443, 469.446, 469.447, or 469.449 applies.
2. A fiduciary shall allocate to income, without
provision for amortization of premium, an amount received as
interest[, whether determined at a fixed, variable or
floating rate,] on an obligation to pay money to the
[trustee] fiduciary, including an amount received as
consideration for prepaying principal[, shall be allocated
to income without any provision for amortization of premium].
[2.] 3. A [trustee] fiduciary 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 shall be allocated to income.
3. This section does not apply to an obligation to
which section 469.437, 469.439, 469.441, 469.443, 469.447 or
469.449 applies] fiduciary. A fiduciary shall allocate to
income the increment in value of a bond or other obligation
for the payment of money bearing no stated interest but
payable or redeemable, at maturity or another future time,
in an amount that exceeds the amount in consideration of
which it was issued.
469.433. 1. This section does not apply to a contract
to which section 469.437 applies.
71
2. Except as otherwise provided in subsection [2] 3 of
this section, a [trustee] fiduciary shall allocate to
principal the proceeds of a life insurance policy or other
contract [in which the trust or its trustee is named]
received by the fiduciary 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] an asset. The [trustee] fiduciary shall allocate
dividends on an insurance policy to income [if] to the
extent premiums on the policy are paid from income[,] and to
principal [if] to the extent premiums on the policy are paid
from principal.
[2.] 3. A [trustee] fiduciary shall allocate to income
proceeds of a contract that insures the [trustee] fiduciary
against loss of:
(1) Occupancy or other use by [an] a current income
beneficiary[, loss of];
(2) Income[,]; or[,]
(3) Subject to section 469.427, [loss of] profits from
a business.
[3. This section does not apply to a contract to which
section 469.437 applies.]
469.435. 1. If a [trustee] fiduciary determines that
an allocation between income and principal [and income]
required by section 469.437, 469.439, 469.441, 469.443 or
469.449 is insubstantial, the [trustee] fiduciary may
allocate the entire amount to principal, unless [one of the
circumstances described in] subsection [3] 5 of section
469.405 applies to the allocation. [This power]
2. A fiduciary may [be exercised by a cotrustee in the
circumstances described in subsection 4 of section 469.405
and may be released for the reasons and in the manner
described in subsection 5 of section 469.405.] presume an
72
allocation is [presumed to be] insubstantial under
subsection 1 of this section if:
(1) The amount of the allocation would increase or
decrease net income in an accounting period, as determined
before the allocation, by less than ten percent; [or] and
(2) [The value of] The asset producing the receipt
[for which the allocation would] to be [made is] allocated
has a fair market value less than ten percent of the total
fair market value of the [trust's] assets owned or held by
the fiduciary at the beginning of the accounting period.
3. The power to make a determination under subsection
1 of this section may be:
(1) Exercised by a cofiduciary in the manner described
in subsection 6 of section 469.405; or
(2) Released or delegated for a reason described in
subsection 7 of section 469.405 and in the manner described
in subsection 8 of section 469.405.
469.437. 1. As used in this section, the following
terms mean:
(1) "Internal income of a separate fund", the amount
determined under subsection 2 of this section;
(2) "Marital trust", a trust:
(a) Of which the settlor's surviving spouse is the
only current income beneficiary and is entitled to a
distribution of all the current net income of the trust; and
(b) That qualifies for a marital deduction with
respect to the settlor's estate under 26 U.S.C. Section
2056, as amended, because:
a. An election to qualify for a marital deduction
under 26 U.S.C. Section 2056(b)(7), as amended, has been
made; or
b. The trust qualifies for a marital deduction under
26 U.S.C. Section 2056(b)(5), as amended;
73
(3) "Payment", an amount [that is:
(a) Received or withdrawn from a plan; or
(b) One of a series of distributions that have been or
will be received] a fiduciary may receive over a fixed
number of years or during the life of one or more
individuals [under any contractual or other arrangement, or
is a single payment from a plan that the trustee could have
received 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
amounts the fiduciary may receive. The term "payment"
includes an amount received in money or property from the
payer's general assets or from a separate fund created by
the payer;
[(2) "Plan", a contractual, custodial, trust or other
arrangement that provides for distributions to the trust,
including, but not limited to, qualified retirement plans,
Individual Retirement Accounts, Roth Individual Retirement
Accounts, public and private annuities, and deferred
compensation, including payments received directly from an
entity as defined in section 469.423 regardless of whether
or not such distributions are made from a specific fund or
account.
2. If any portion of a payment is characterized as a
distribution to the trustee of interest, dividends or a
dividend equivalent, the trustee shall allocate the portion
so characterized to income. The trustee shall allocate the
balance of that payment to principal.
3. If no part of a payment is allocated to income
pursuant to subsection 2 of this section, then for each
accounting period of the trust that any payment is received
by the trust with respect to the trust's interest in a plan,
the trustee shall allocate to income that portion of the
74
aggregate value of all payments received by the trustee in
that accounting period equal to the amount of plan income
attributable to the trust's interest in the plan for that
calendar year. The trustee shall allocate the balance of
that payment to principal.
4. For purposes of this section, if a payment is
received from a plan that maintains a separate account or
fund for its participants or account holders, including, but
not limited to, defined contribution retirement plans,
Individual Retirement Accounts, Roth Individual Retirement
Accounts, and some types of deferred compensation plans, the
phrase "plan income" shall mean either the amount of the
plan account or fund held for the benefit of the trust that,
if the plan account or fund were a trust, would be allocated
to income pursuant to sections 469.401 to 469.467 for that
accounting period, or four percent of the value of the plan
account or fund on the first day of that accounting period.
The method of determining plan income pursuant to this
subsection shall be chosen by the trustee in the trustee's
discretion. The trustees may change the method of
determining plan income pursuant to this subsection for any
future accounting period.
5. For purposes of this section if the payment is
received from a plan that does not maintain a separate
account or fund for its participants or account holders,
including by way of example and not limitation defined
benefit retirement plans and some types of deferred
compensation plans, the term "plan income" shall mean four
percent of the total present value of the trust's interest
in the plan as of the first day of the accounting period,
based on reasonable actuarial assumptions as determined by
the trustee.
75
6. Notwithstanding subsections 1 to 5 of this section,
with respect to a trust where an election to qualify for a
marital deduction under Section 2056(b)(7) or Section
2523(f) of the Internal Revenue Code of 1986, as amended,
has been made, or a trust that qualified for the marital
deduction under either Section 2056(b)(5) or Section 2523(e)
of the Internal Revenue Code of 1986, as amended, a trustee
shall determine the plan income for the accounting period as
if the plan were a trust subject to sections 469.401 to
469.467. Upon request of the surviving spouse, the trustee
shall demand that the person administering the plan
distribute the plan income to the trust. The trustee shall
allocate a payment from the plan to income to the extent of
the plan income and distribute that amount to the surviving
spouse. The trustee shall allocate the balance of the
payment to principal. Upon request of the surviving spouse,
the trustee shall allocate principal to income to the extent
the plan income exceeds payments made from the plan to the
trust during the accounting period.
7. If, to obtain an estate or gift tax marital
deduction for a trust, a trustee shall 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.]
(4) "Separate fund", includes a private or commercial
annuity, an individual retirement account, and a pension,
profit-sharing, stock bonus, or stock ownership plan.
2. For each accounting period, the following rules
apply to a separate fund:
(1) The fiduciary shall determine the internal income
of the separate fund as if the separate fund was a trust
subject to sections 469.399 to 469.487;
76
(2) If the fiduciary cannot determine the internal
income of the separate fund under subdivision (1) of this
subsection, the internal income of the separate fund is
deemed to equal three percent of the value of the separate
fund, according to the most recent statement of value
preceding the beginning of the accounting period; and
(3) If the fiduciary cannot determine the value of the
separate fund under subdivision (2) of this subsection, the
value of the separate fund is deemed to equal the present
value of the expected future payments, as determined under
26 U.S.C. Section 7520, as amended, for the month preceding
the beginning of the accounting period for which the
computation is made.
3. A fiduciary shall allocate a payment received from
a separate fund during an accounting period to income, to
the extent of the internal income of the separate fund
during the accounting period, and the balance to principal.
4. The fiduciary of a marital trust shall:
(1) Withdraw from a separate fund the amount the
current income beneficiary of the trust requests the
fiduciary to withdraw, not greater than the amount by which
the internal income of the separate fund during the
accounting period exceeds the amount the fiduciary otherwise
receives from the separate fund during the accounting period;
(2) Transfer from principal to income the amount the
current income beneficiary requests the fiduciary to
transfer, not greater than the amount by which the internal
income of the separate fund during the accounting period
exceeds the amount the fiduciary receives from the separate
fund during the accounting period after the application of
subdivision (1) of this subsection; and
(3) Distribute to the current income beneficiary as
income:
77
(a) The amount of the internal income of the separate
fund received or withdrawn during the accounting period; and
(b) The amount transferred from principal to income
under subdivision (2) of this subsection.
5. For a trust, other than a marital trust, of which
one or more current income beneficiaries are entitled to a
distribution of all the current net income, the fiduciary
shall transfer from principal to income the amount by which
the internal income of a separate fund during the accounting
period exceeds the amount the fiduciary receives from the
separate fund during the accounting period.
469.439. 1. As used in this section, the [phrase]
term "liquidating asset" means an asset whose value will
diminish or terminate because the asset is expected to
produce receipts for a [period of] limited [duration] time.
The [phrase] term "liquidating asset" 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 phrase]
2. This section does not [include a payment] apply to
a receipt subject to section 469.423, 469.437, [resources
subject to section] 469.441, [timber subject to section]
469.443, [an activity subject to section] 469.446, 469.447,
[an asset subject to section] 469.449, or [any asset for
which the trustee establishes a reserve for depreciation
pursuant to section] 469.455.
[2.] 3. A [trustee] fiduciary shall allocate:
(1) To income [ten percent of the receipts from]:
(a) A receipt produced by a liquidating asset [and the
balance], to the extent the receipt does not exceed three
percent of the value of the asset; or
78
(b) If the fiduciary cannot determine the value of the
asset, ten percent of the receipt; and
(2) To principal, the balance of the receipt.
469.441. 1. To the extent [that a trustee accounts
for receipts] a fiduciary does not account for a receipt
from an interest in minerals, water, or other natural
resources [pursuant to this section] as a business under
section 469.427, the [trustee] fiduciary shall allocate
[them as follows] the receipt:
(1) [If] To income, to the extent received:
(a) As [nominal] delay rental or [nominal] annual rent
on a lease[, a receipt shall be allocated to income];
(b) As a factor for interest or the equivalent of
interest under an agreement creating a production payment; or
(c) On account of an interest in renewable water;
(2) To principal, if received from a production
payment, [a receipt shall 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 shall be allocated to principal;] to the extent
paragraph (b) of subdivision (1) of this subsection does not
apply; or
(3) [If an amount received] Between income and
principal equitably, to the extent received:
(a) On account of an interest in nonrenewable water;
(b) As a royalty, shut-in-well payment, take-or-pay
payment, or bonus [or delay rental is more than nominal,
ninety percent shall be allocated to principal and the
balance to income]; or
[(4) If an amount is received] (c) From a working
interest or any other interest not provided for in
subdivision (1)[,] or (2) [or (3)] of this subsection[,
ninety percent of the net amount received shall be allocated
79
to principal and the balance to income] or paragraph (a) or
(b) of this subdivision.
2. [An amount received on account of] This section
applies to an interest [in water that is renewable shall be
allocated to income. If the water is not renewable, ninety
percent of the amount shall be allocated to principal and
the balance to income.
3. Sections 469.401 to 469.467 apply] owned or held by
a fiduciary whether or not a [decedent or donor] settlor was
extracting minerals, water, or other natural resources
before the fiduciary owned or held the interest [became
subject to the trust].
3. An allocation of a receipt under subdivision (3) of
subsection 1 of this section is presumed to be equitable if
the amount allocated to principal is equal to the amount
allowed by Title 26 of the United States Code, as amended,
as a deduction for depletion of the interest.
4. If a [trust] fiduciary owns or holds an interest in
minerals, water, or other natural resources [on] before
August 28, [2001] 2026, the [trustee] fiduciary may allocate
receipts from the interest as provided in [sections 469.401
to 469.467] this section or in the manner used by the
[trustee] fiduciary before August 28, [2001] 2026. If the
[trust] fiduciary acquires an interest in minerals, water,
or other natural resources on or after August 28, [2001]
2026, the [trustee] fiduciary shall allocate receipts from
the interest as provided in [sections 469.401 to 469.467]
this section.
469.443. 1. To the extent [that a trustee accounts] a
fiduciary does not account for receipts from the sale of
timber and related products [pursuant to this] as a business
under section 469.427, the [trustee] fiduciary shall
allocate the net receipts:
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(1) To income, to the extent [that] the amount of
timber [removed] cut 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) To principal, to the extent [that] the amount of
timber [removed] cut from the land exceeds the rate of
growth of the timber or the net receipts are from the sale
of standing timber;
(3) [To or] Between income and principal if the net
receipts are from the lease of [timberland] land used for
growing and cutting timber or from a contract to cut timber
from land [owned by a trust], by determining the amount of
timber [removed] cut from the land under the lease or
contract and applying the rules in subdivisions (1) and (2)
of this subsection; or
(4) To principal, to the extent [that] advance
payments, bonuses, and other payments are not allocated
[pursuant to either] under subdivision (1), (2), or (3) of
this subsection.
2. In determining net receipts to be allocated
[pursuant to] under subsection 1 of this section, a
[trustee] fiduciary shall deduct and transfer to principal a
reasonable amount for depletion.
3. [Sections 469.401 to 469.467 apply] This section
applies to land owned or held by a fiduciary whether or not
a [decedent or transferor] settlor was [harvesting] cutting
timber from the land before the fiduciary owned or held the
property [before it became subject to the trust].
4. If a [trust] fiduciary owns or holds an interest in
[timberland on] land used for growing and cutting timber
before August 28, [2001] 2026, the [trustee] fiduciary may
allocate net receipts from the sale of timber and related
products as provided in [sections 469.401 to 469.467] this
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section or in the manner used by the [trustee] fiduciary
before August 28, [2001] 2026. If the [trust] fiduciary
acquires an interest in [timberland] land used for growing
and cutting timber on or after August 28, [2001] 2026, the
[trustee] fiduciary shall allocate net receipts from the
sale of timber and related products as provided in [sections
469.401 to 469.467] this section.
469.445. 1. If a trust received property for which a
gift or estate tax marital deduction [is] was allowed [for
all or part of a trust whose] and the settlor's spouse holds
a mandatory income interest in the trust, the spouse may
require the trustee, to the extent the trust assets [consist
substantially of property that does] otherwise do not
provide the 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 469.405 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] to qualify for the deduction, [the spouse may
require the trustee] to:
(1) Make property productive of income[,];
(2) Convert property to property productive of income
within a reasonable time[,]; or
(3) Exercise the power [conferred by subsection 1 of]
to adjust under section 469.405.
2. The trustee may decide which action or combination
of actions in subsection 1 of this section to take.
[2. In cases not governed by subsection 1 of this
section, 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.]
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469.446. A fiduciary shall allocate receipts from or
related to a financial instrument or arrangement not
otherwise addressed by sections 469.399 to 469.487. The
allocation shall be consistent with sections 469.447 and
469.449.
469.447. 1. As used in this section, the term
"derivative" means a contract [or financial], instrument,
other arrangement, or [a] combination of contracts [and
financial], instruments, or other arrangements, the value,
rights, and obligations of which [gives a trust the right or
obligation to participate in some or all changes in the
price of a] are, in whole or in part, dependent on or
derived from an underlying tangible or intangible asset
[or], group of tangible or intangible assets, [or changes in
a rate, an] index [of prices], or occurrence of an event.
The term "derivative" includes stocks, fixed income
securities, and financial instruments and arrangements based
on indices, commodities, interest rates, [or other market
indicator for an asset or a group of assets] weather-related
events, and credit default events.
2. To the extent [that a trustee] a fiduciary does not
account [pursuant to section 469.427 for transactions] for a
transaction in derivatives[, the trustee] as a business
under section 469.427, the fiduciary shall allocate [to
principal] ten percent of receipts from the transaction and
ten percent of disbursements made in connection with [those
transactions] the transaction to income and the balance to
principal.
3. The provisions of subsection 4 of this section
apply if:
(1) A [trustee] fiduciary:
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(a) Grants an option to buy property from [the] a
trust, whether or not the trust owns the property when the
option is granted[,];
(b) Grants an option that permits another person to
sell property to the trust[,]; or
(c) Acquires an option to buy property for the trust
or an option to sell an asset owned by the trust[,]; and
(2) The [trustee] fiduciary or other owner of the
asset is required to deliver the asset if the option is
exercised[,].
4. If this subsection applies, the fiduciary shall
allocate ten percent to income and the balance to principal
of the following amounts:
(1) An amount received for granting the option [shall
be allocated to principal.];
(2) An amount paid to acquire the option [shall be
paid from principal. A]; and
(3) Gain or loss realized [upon] on the exercise [of
an option, including an option granted to a settlor],
exchange, settlement, offset, closing, or expiration of the
[trust for services rendered, shall be allocated to
principal] option.
469.449. 1. [As used in this section, the phrase
"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 phrase 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 phrase does not include an asset to
which section 469.423 or 469.437 applies.
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2. If a trust receives a payment from interest or
other current return and from other proceeds of the
collateral financial assets, the trustee] Except as
otherwise provided in subsection 2 of this section, a
fiduciary shall allocate to income [the portion of the
payment which] a receipt from or related to an asset-backed
security, to the extent the payer identifies the payment as
being from interest or other current return, and [shall
allocate] to principal the balance of the [payment to
principal] receipt.
[3.] 2. If a [trust] fiduciary receives one or more
payments in exchange for part or all of the [trust's entire]
fiduciary's 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 will result in the], including a liquidation or
redemption of the [trust's] fiduciary's interest in the
security [over more than one accounting period], the
[trustee] fiduciary shall allocate to income ten percent of
receipts from the [payment to income] transaction and [the
balance] ten percent of disbursements made in connection
with the transaction, and to principal the balance of the
receipts and disbursements.
469.451. [A trustee shall make the following
disbursements from income to the extent that they are not
disbursements to which paragraph (b) or (c) of] Subject to
section 469.456, and except as otherwise provided in
subdivision (2) or (3) of subsection 3 of section 469.413
[applies], a fiduciary shall disburse from income:
(1) One-half of:
(a) The regular compensation of the [trustee]
fiduciary and [of] any person providing investment advisory
85
[or], custodial, or other services to the [trustee]
fiduciary, to the extent income is sufficient; and
[(2) One-half of all expenses] (b) An expense for
[accountings] an accounting, judicial [proceedings] or
nonjudicial proceeding, or other [matters] matter that
[involve] involves both [the] income and [remainder]
successive interests, to the extent income is sufficient;
[(3) All of the other] (2) The balance of the
disbursements described in subdivision (1) of this section,
to the extent a fiduciary that is an independent person
determines that making those disbursements from income would
be in the interests of the beneficiaries;
(3) Another ordinary [expenses] expense incurred in
connection with [the] administration, management, or
preservation of [trust] property and [the] distribution of
income, including interest, an ordinary [repairs] repair,
regularly recurring [taxes] tax assessed against principal,
and [expenses] an expense of [a] an accounting, judicial or
nonjudicial proceeding, or other matter that [concerns]
involves primarily [the] an income interest, to the extent
income is sufficient; and
(4) [Recurring premiums] A premium on insurance
covering [the] loss of a principal asset or [the loss of]
income from or use of the asset.
469.453. 1. [A trustee shall make the following
disbursements] Subject to section 469.457, and except as
otherwise provided in subdivision (2) of subsection 3 of
section 469.413, a fiduciary shall disburse from principal:
(1) The [remaining one-half] balance of the
disbursements described in subdivisions (1) and [(2)] (3) of
section 469.451, after application of subdivision (2) of
section 469.451;
86
(2) [All of] The [trustee's] fiduciary's compensation
calculated on principal as a fee for acceptance,
distribution, or termination[, and disbursements made to
prepare property for sale];
(3) [Payments] A payment of an expense to prepare for
or execute a sale or other disposition of property;
(4) A payment on the principal of a trust debt;
[(4) Expenses of a] (5) A payment of an expense of an
accounting, judicial or nonjudicial proceeding, or other
matter that [concerns] involves primarily [an interest in]
principal, including a proceeding to construe the terms of
the trust or protect property;
[(5) Premiums paid on a policy of] (6) A payment of a
premium for insurance, including title insurance, not
described in subdivision (4) of section 469.451 of which the
[trust] fiduciary is the owner and beneficiary;
[(6)] (7) A payment of an estate[,] or inheritance
[and other transfer taxes] tax or other tax imposed because
of the death of a decedent, including penalties, apportioned
to the trust; and
[(7) Extraordinary expenses incurred in connection
with the management and preservation of trust property;
(8) Expenses for 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; and
(9) Disbursements] (8) A payment:
(a) Related to environmental matters, including:
a. Reclamation[,];
b. Assessing environmental conditions[,];
c. Remedying and removing environmental
contamination[,];
87
d. Monitoring remedial activities and the release of
substances[,];
e. Preventing future releases of substances[,];
f. Collecting amounts from persons liable or
potentially liable for the costs of [those] activities[,]
described in subparagraphs a. to e. of this paragraph;
g. Penalties imposed under environmental laws or
regulations [and];
h. Other [payments made] actions to comply with
[those] environmental laws or regulations[,];
i. Statutory or common law claims by third parties[,];
and
j. Defending claims based on environmental matters; and
(b) For a premium for insurance for matters described
in paragraph (a) of this subdivision.
2. If a principal asset is encumbered with an
obligation that requires income from [that] the asset to be
paid directly to [the] a creditor, the [trustee] fiduciary
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.
469.455. 1. As used in this section, the term
"depreciation" means a reduction in value due to wear, tear,
decay, corrosion, or gradual obsolescence of a [fixed]
tangible asset having a useful life of more than one year.
2. A [trustee] fiduciary may transfer to principal a
reasonable amount of the net cash receipts from a principal
asset that is subject to depreciation, but [may] shall not
transfer any amount for depreciation:
(1) Of [that portion] the part of real property used
or available for use by a beneficiary as a residence [or];
(2) Of tangible personal property held or made
available for the personal use or enjoyment of a beneficiary;
88
[(2) During the administration of a decedent's
estate;] or
(3) [Pursuant to] Under this section [if the trustee
is accounting pursuant], to the extent the fiduciary
accounts:
(a) Under section 469.439 for the asset; or
(b) Under section 469.427 for the business or other
activity in which the asset is used.
3. An amount transferred to principal under this
section need not be separately held [as a separate fund].
469.456. 1. If a fiduciary makes or expects to make
an income disbursement described in subsection 2 of this
section, the fiduciary may transfer an appropriate amount
from principal to income in one or more accounting periods
to reimburse income.
2. To the extent the fiduciary has not been and does
not expect to be reimbursed by a third party, income
disbursements to which subsection 1 of this section applies
include:
(1) An amount chargeable to principal but paid from
income because principal is illiquid;
(2) A disbursement made to prepare property for sale,
including improvements and commissions; and
(3) A disbursement described in subsection 1 of
section 469.453.
3. If an asset whose ownership gives rise to an income
disbursement becomes subject to a successive interest after
an income interest ends, the fiduciary may continue to make
transfers under subsection 1 of this section.
469.457. 1. If a [trustee] fiduciary makes or expects
to make a principal disbursement described in subsection 2
of this section, the [trustee] fiduciary may transfer an
appropriate amount from income to principal in one or more
89
accounting periods to reimburse principal or [to] provide a
reserve for future principal disbursements.
2. To the extent a fiduciary has not been and does not
expect to be reimbursed by a third party, principal
disbursements to which subsection 1 of this section applies
include [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] income is [unusually large, including
extraordinary repairs] not sufficient;
(2) [Disbursements] The cost of an improvement to
principal, whether a change to an existing asset or the
construction of a new asset, including a special assessment;
(3) A disbursement made to prepare property for
rental, including tenant allowances, leasehold improvements,
and [broker's] commissions;
[(3)] (4) A periodic [payments] 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] payment;
and
[(4) Disbursements] (5) A disbursement described in
[subdivision (7) of] subsection 1 of section 469.453.
3. If [the] an asset whose ownership gives rise to
[the disbursements] a principal disbursement becomes subject
to a successive [income] interest after an income interest
ends, [a trustee] the fiduciary may continue to [transfer
amounts from income to principal as provided in] make
transfers under subsection 1 of this section.
469.459. 1. A tax required to be paid by a [trustee]
fiduciary that is based on receipts allocated to income
shall be paid from income.
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2. A tax required to be paid by a [trustee] fiduciary
that is based on receipts allocated to principal shall be
paid from principal, even if the tax is called an income tax
by the taxing authority.
3. Subject to subsection 4 of this section and
sections 469.456, 469.457, and 469.462, a tax required to be
paid by a [trustee] fiduciary on [the trust's] a share of an
entity's taxable income in an accounting period shall be
paid from:
(1) [From] Income and principal proportionately to the
[extent that] allocation between income and principal of
receipts from the entity [are allocated to income] in the
accounting period; and
(2) [From] Principal to the extent [that] the tax
exceeds the receipts from the entity [are allocated only to
principal] in the accounting period.
4. After applying subsections 1 to 3 of this section,
[the trustee] a fiduciary shall adjust income or principal
receipts, to the extent [that] the [trust's] taxes the
fiduciary pays are reduced because [the trust receives] of a
deduction for a payment made to a beneficiary.
469.462. 1. A fiduciary may make an adjustment
between income and principal to offset the shifting of
economic interests or tax benefits between current income
beneficiaries and successor beneficiaries that arises from:
(1) An election or decision the fiduciary makes
regarding a tax matter, other than a decision to claim an
income tax deduction to which subsection 2 of this section
applies;
(2) An income tax or other tax imposed on the
fiduciary or a beneficiary as a result of a transaction
involving the fiduciary or a distribution by the fiduciary;
or
91
(3) Ownership by the fiduciary of an interest in an
entity, a part of whose taxable income, whether or not
distributed, is includable in the taxable income of the
fiduciary or a beneficiary.
2. If the amount of an estate tax marital or
charitable 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 the fiduciary or a beneficiary are
decreased, the fiduciary shall charge each beneficiary that
benefits from the decrease in income tax to reimburse the
principal from which the increase in estate tax is paid.
The total reimbursement shall equal the increase in the
estate tax, to the extent the principal used to pay the
increase would have qualified for a marital or charitable
deduction but for the payment. The share of the
reimbursement for each fiduciary or beneficiary whose income
taxes are reduced shall be the same as its share of the
total decrease in income tax.
3. A fiduciary that charges a beneficiary under
subsection 2 of this section may offset the charge by
obtaining payment from the beneficiary, withholding an
amount from future distributions to the beneficiary, or
adopting another method or combination of methods.
469.463. In applying and construing sections [469.401]
469.399 to [469.467] 469.487, consideration shall be given
to the need to promote uniformity of the law with respect to
its subject matter among states that enact it.
469.464. The provisions of sections 469.399 to 469.487
modify, limit, or supersede the Electronic Signatures in
Global and National Commerce Act, 15 U.S.C. Section 7001, et
seq., but do not modify, limit, or supersede 15 U.S.C.
92
Section 7001(c) or authorize electronic delivery of any of
the notices described in 15 U.S.C. Section 7003(b).
469.465. If any provision of sections [469.401]
469.399 to [469.467] 469.487 or [the] its application [of
these sections] to any person or circumstance is held
invalid, the invalidity does not affect other provisions or
applications of sections [469.401] 469.399 to [469.467]
469.487 which can be given effect without the invalid
provision or application and to this end, the provisions of
sections 469.399 to 469.487 are severable.
469.467. The provisions of sections [469.401] 469.399
to [469.467] 469.487 apply to [every] a trust or
[decedent's] estate existing or created on or after August
28, [2001] 2026, except as otherwise expressly provided in
the [will or] terms of the trust or [in] sections [469.401]
469.399 to [469.467] 469.487.
469.471. As used in sections 469.471 to 469.487, the
following terms mean:
(1) "Applicable value", the amount of the net fair
market value of a trust taken into account under section
469.483;
(2) "Express unitrust", a trust for which, under the
terms of the trust without regard to sections 469.471 to
469.487, income or net income shall or may be calculated as
a unitrust amount;
(3) "Income trust", a trust that is not a unitrust;
(4) "Net fair market value of a trust", the fair
market value of the assets of the trust, less the
noncontingent liabilities of the trust;
(5) "Unitrust", a trust for which net income is a
unitrust amount. The term "unitrust" includes an express
unitrust;
93
(6) "Unitrust amount", an amount computed by
multiplying a determined value of a trust by a determined
percentage. For a unitrust administered under a unitrust
policy, the term "unitrust amount" means the applicable
value multiplied by the unitrust rate;
(7) "Unitrust policy", a policy described in sections
469.479 to 469.487 and adopted under section 469.475;
(8) "Unitrust rate", the rate used to compute the
unitrust amount for a unitrust administered under a unitrust
policy.
469.473. 1. Except as otherwise provided in
subsection 2 of this section, sections 469.471 to 469.487
apply to:
(1) An income trust, unless the terms of the trust
expressly prohibit use of sections 469.471 to 469.487 by a
specific reference to these sections or an explicit
expression of intent that net income not be calculated as a
unitrust amount; and
(2) An express unitrust, except to the extent the
terms of the trust explicitly:
(a) Prohibit use of sections 469.471 to 469.487 by a
specific reference to such sections;
(b) Prohibit conversion to an income trust; or
(c) Limit changes to the method of calculating the
unitrust amount.
2. Sections 469.471 to 469.487 do not apply to a trust
described in 26 U.S.C. Section 170(f)(2)(B), 642(c)(5),
664(d), 2702(a)(3)(A)(ii) or (iii), or 2702(b), as amended.
3. An income trust to which sections 469.471 to
469.487 apply under subdivision (1) of subsection 1 of this
section may be converted to a unitrust under sections
469.471 to 469.487 regardless of the terms of the trust
concerning distributions. Conversion to a unitrust under
94
sections 469.471 to 469.487 does not affect other terms of
the trust concerning distributions of income or principal.
4. Sections 469.471 to 469.487 apply to an estate only
to the extent a trust is a beneficiary of the estate. To
the extent of the trust's interest in the estate, the estate
may be administered as a unitrust, the administration of the
estate as a unitrust may be discontinued, or the percentage
or method used to calculate the unitrust amount may be
changed, in the same manner as for a trust under sections
469.471 to 469.487.
5. Sections 469.471 to 469.487 do not create a duty to
take or consider action under sections 469.471 to 469.487 or
to inform a beneficiary about the applicability of sections
469.471 to 469.487.
6. A fiduciary that in good faith takes or fails to
take an action under sections 469.471 to 469.487 is not
liable to a person affected by the action or inaction.
469.475. 1. A fiduciary, without court approval, by
complying with subsections 2 and 6 of this section, may:
(1) Convert an income trust to a unitrust if the
fiduciary adopts in a record a unitrust policy for the trust
providing:
(a) That, in administering the trust, the net income
of the trust will be a unitrust amount rather than net
income determined without regard to sections 469.471 to
469.487; and
(b) The percentage and method used to calculate the
unitrust amount;
(2) Change the percentage or method used to calculate
a unitrust amount for a unitrust if the fiduciary adopts in
a record a unitrust policy or an amendment or replacement of
a unitrust policy providing changes in the percentage or
method used to calculate the unitrust amount; or
95
(3) Convert a unitrust to an income trust if the
fiduciary adopts in a record a determination that, in
administering the trust, the net income of the trust will be
net income determined without regard to sections 469.471 to
469.487 rather than a unitrust amount.
2. A fiduciary may take an action under subsection 1
of this section if:
(1) The fiduciary determines that the action will
assist the fiduciary to administer a trust impartially;
(2) The fiduciary sends a notice in a record, in the
manner required by section 469.477, describing and proposing
to take the action;
(3) The fiduciary sends a copy of the notice under
subdivision (2) of this subsection to each settlor of the
trust that is:
(a) If an individual, living; or
(b) If not an individual, in existence;
(4) At least one member of each class of the qualified
beneficiaries described under section 456.1-103 receiving
the notice under subdivision (2) of this subsection is:
(a) If an individual, legally competent;
(b) If not an individual, in existence; or
(c) Represented in the manner provided in subsection 2
of section 469.477; and
(5) The fiduciary does not receive, by the date
specified in the notice under subdivision (5) of subsection
4 of section 469.477, an objection in a record to the action
proposed under subdivision (2) of this subsection from a
person to which the notice under subdivision (2) of this
subsection is sent.
3. If a fiduciary receives, not later than the date
stated in the notice under subdivision (5) of subsection 4
of section 469.477, an objection in a record described in
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subdivision (4) of subsection 4 of section 469.477 to a
proposed action, the fiduciary or a beneficiary may request
the court to have the proposed action taken as proposed,
taken with modifications, or prevented. A person described
in subsection 1 of section 469.477 may oppose the proposed
action in the proceeding under this subsection, whether or
not the person:
(1) Consented under subsection 3 of section 469.477; or
(2) Objected under subdivision (4) of subsection 4 of
section 469.477.
4. If, after sending a notice under subdivision (2) of
subsection 2 of this section, a fiduciary decides not to
take the action proposed in the notice, the fiduciary shall
notify in a record each person described in subsection 1 of
section 469.477 of the decision not to take the action and
the reasons for the decision.
5. If a beneficiary requests in a record that a
fiduciary take an action described in subsection 1 of this
section and the fiduciary declines to act or does not act
within ninety days after receiving the request, the
beneficiary may request the court to direct the fiduciary to
take the action requested.
6. In deciding whether and how to take an action
authorized by subsection 1 of this section, or whether and
how to respond to a request by a beneficiary under
subsection 5 of this section, a fiduciary shall consider all
factors relevant to the trust and the beneficiaries,
including relevant factors in subsection 5 of section
469.403.
7. A fiduciary may release or delegate the power to
convert an income trust to a unitrust under subdivision (1)
of subsection 1 of this section, change the percentage or
method used to calculate a unitrust amount under subdivision
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(2) of subsection 1 of this section, or convert a unitrust
to an income trust under subdivision (3) of subsection 1 of
this section, for a reason described in subsection 7 of
section 469.405 and in the manner described in subsection 8
of section 469.405.
469.477. 1. A notice required by subdivision (3) of
subsection 2 of section 469.475 shall be sent in a manner
authorized under section 456.1-109 to:
(1) The qualified beneficiaries defined in section
456.1-103;
(2) Each person acting as trust protector under
section 456.8-808; and
(3) Each person that is granted a power over the trust
by the terms of the trust, to the extent the power is
exercisable when the person is not then serving as a trustee:
(a) Including a:
a. Power over the investment, management, or
distribution of trust property or other matters of trust
administration; and
b. Power to appoint or remove a trustee or person
described in this paragraph; and
(b) Excluding a:
a. Power of appointment;
b. Power of a beneficiary over the trust, to the
extent the exercise or nonexercise of the power affects the
beneficial interest of the beneficiary or another
beneficiary represented by the beneficiary under sections
456.3-301 to 456.3-305 with respect to the exercise or
nonexercise of the power; and
c. Power over the trust if the terms of the trust
provide that the power is held in a nonfiduciary capacity
and the power shall be held in a nonfiduciary capacity to
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achieve a tax objective under Title 26 of the United States
Code, as amended.
2. The representation provisions of sections 456.3-301
to 456.3-305 apply to notice under this section.
3. A person may consent in a record at any time to
action proposed under subdivision (2) of subsection 2 of
section 469.475. A notice required by subdivision (2) of
subsection 2 of section 469.475 need not be sent to a person
that consents under this subsection.
4. A notice required by subdivision (2) of subsection
2 of section 469.475 shall include:
(1) The action proposed under subdivision (2) of
subsection 2 of section 469.475;
(2) For a conversion of an income trust to a unitrust,
a copy of the unitrust policy adopted under subdivision (1)
of subsection 1 of section 469.475;
(3) For a change in the percentage or method used to
calculate the unitrust amount, a copy of the unitrust policy
or amendment or replacement of the unitrust policy adopted
under subdivision (2) of subsection 1 of section 469.475;
(4) A statement that the person to which the notice is
sent may object to the proposed action by stating in a
record the basis for the objection and sending or delivering
the record to the fiduciary;
(5) The date by which an objection under subdivision
(4) of this subsection shall be received by the fiduciary,
which shall be at least thirty days after the date the
notice is sent;
(6) The date on which the action is proposed to be
taken and the date on which the action is proposed to take
effect;
(7) The name and contact information of the fiduciary;
and
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(8) The name and contact information of a person that
may be contacted for additional information.
469.479. 1. In administering a unitrust under
sections 469.471 to 469.487, a fiduciary shall follow a
unitrust policy adopted under subdivision (1) or (2) of
subsection 1 of section 469.475 or amended or replaced under
subdivision (2) of subsection 1 of section 469.475.
2. A unitrust policy shall provide:
(1) The unitrust rate or the method for determining
the unitrust rate under section 469.481;
(2) The method for determining the applicable value
under section 469.483; and
(3) The rules described in sections 469.481 to 469.487
that apply in the administration of the unitrust, whether
the rules are:
(a) Mandatory, as provided in subsection 1 of section
469.483 and subsection 1 of section 469.485; or
(b) Optional, as provided in section 469.481,
subsection 2 of section 469.483, subsection 2 of section
469.485, and subsection 1 of section 469.487, to the extent
the fiduciary elects to adopt such rules.
469.481. 1. Except as otherwise provided in
subdivision (1) of subsection 2 of section 469.487, a
unitrust rate may be:
(1) A fixed unitrust rate; or
(2) A unitrust rate that is determined for each period
using:
(a) A market index or other published data; or
(b) A mathematical blend of market indices or other
published data over a stated number of preceding periods.
2. Except as otherwise provided in subdivision (1) of
subsection 2 of section 469.487, a unitrust policy may
provide:
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(1) A limit on how high the unitrust rate determined
under subdivision (2) of subsection 1 of this section may
rise;
(2) A limit on how low the unitrust rate determined
under subdivision (2) of subsection 1 of this section may
fall;
(3) A limit on how much the unitrust rate determined
under subdivision (2) of subsection 1 of this section may
increase over the unitrust rate for the preceding period or
a mathematical blend of unitrust rates over a stated number
of preceding periods;
(4) A limit on how much the unitrust rate determined
under subdivision (2) of subsection 1 of this section may
decrease below the unitrust rate for the preceding period or
a mathematical blend of unitrust rates over a stated number
of preceding periods; or
(5) A mathematical blend of any of the unitrust rates
determined under subdivision (2) of subsection 1 of this
section and subdivisions (1) to (4) of this subsection.
469.483. 1. A unitrust policy shall provide the
method for determining the fair market value of an asset for
the purpose of determining the unitrust amount, including:
(1) The frequency of valuing the asset, which need not
require a valuation in every period; and
(2) The date for valuing the asset in each period in
which the asset is valued.
2. Except as otherwise provided in subdivision (2) of
subsection 2 of section 469.487, a unitrust policy may
provide methods for determining the amount of the net fair
market value of the trust to take into account in
determining the applicable value, including:
(1) Obtaining an appraisal of an asset for which fair
market value is not readily available;
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(2) Exclusion of specific assets or groups or types of
assets;
(3) Other exceptions or modifications of the treatment
of specific assets or groups or types of assets;
(4) Identification and treatment of cash or property
held for distribution;
(5) Use of:
(a) An average of fair market values over a stated
number of preceding periods; or
(b) Another mathematical blend of fair market values
over a stated number of preceding periods;
(6) A limit on how much the applicable value of all
assets, groups of assets, or individual assets may increase
over:
(a) The corresponding applicable value for the
preceding period; or
(b) A mathematical blend of applicable values over a
stated number of preceding periods;
(7) A limit on how much the applicable value of all
assets, groups of assets, or individual assets may decrease
below:
(a) The corresponding applicable value for the
preceding period; or
(b) A mathematical blend of applicable values over a
stated number of preceding periods;
(8) The treatment of accrued income and other features
of an asset that affect value; and
(9) Determining the liabilities of the trust,
including treatment of liabilities to conform with the
treatment of assets under subdivisions (1) to (8) of this
subsection.
469.485. 1. A unitrust policy shall provide the
period used under sections 469.481 and 469.483. Except as
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otherwise provided in subdivision (3) of subsection 2 of
section 469.481, the period may be:
(1) A calendar year;
(2) A twelve-month period other than a calendar year;
(3) A calendar quarter;
(4) A three-month period other than a calendar
quarter; or
(5) Another period.
2. Except as otherwise provided in subsection 2 of
section 469.487, a unitrust policy may provide standards for:
(1) Using fewer preceding periods under paragraph (b)
of subdivision (2) of subsection 1 of section 469.481 or
subdivision (3) or (4) of subsection 2 of section 469.481 if:
(a) The trust was not in existence in a preceding
period; or
(b) Market indices or other published data are not
available for a preceding period;
(2) Using fewer preceding periods under paragraph (a)
or (b) of subdivision (5) of subsection 2 of section
469.483, paragraph (b) of subdivision (6) of subsection 2 of
section 469.483, or paragraph (b) of subdivision (7) of
subsection 2 of section 469.483 if:
(a) The trust was not in existence in a preceding
period; or
(b) Fair market values are not available for a
preceding period; and
(3) Prorating the unitrust amount on a daily basis for
a part of a period in which the trust or the administration
of the trust as a unitrust or the interest of any
beneficiary commences or terminates.
469.487. 1. A unitrust policy may:
(1) Provide methods and standards for:
(a) Determining the timing of distributions;
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(b) Making distributions in cash or in kind or partly
in cash and partly in kind; or
(c) Correcting an underpayment or overpayment to a
beneficiary based on the unitrust amount if there is an
error in calculating the unitrust amount;
(2) Specify sources and the order of sources,
including categories of income for federal income tax
purposes, from which distributions of a unitrust amount are
paid; or
(3) Provide other standards and rules the fiduciary
determines serve the interests of the beneficiaries.
2. If a trust qualifies for a special tax benefit or a
fiduciary is not an independent person:
(1) The unitrust rate established under section
469.481 shall not be less than three percent or more than
five percent;
(2) The only provisions of section 469.483 that apply
are subsection 1 of section 469.483; subdivisions (1), (4),
and (9) of subsection 2 of section 469.483; and paragraph
(a) of subdivision (5) of subsection 2 of section 469.483;
(3) The only period that may be used under section
469.485 is a calendar year under subdivision (1) of
subsection 1 of section 469.485; and
(4) The only other provisions of section 469.485 that
apply are paragraph (a) of subdivision (2) of subsection 2
of section 469.485 and subdivision (3) of subsection 2 of
section 469.485.
488.426. 1. The judges of the circuit court, en banc,
in any circuit in this state may require any party filing a
civil case in the circuit court, at the time of filing the
suit, to deposit with the clerk of the court a surcharge in
addition to all other deposits required by law or court
rule. Sections 488.426 to 488.432 shall not apply to
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proceedings when costs are waived or are to be paid by the
county or state or any city.
2. The surcharge in effect on August 28, 2001, shall
remain in effect until changed by the circuit court. The
circuit court in any circuit, except the circuit court in
Jackson County, the circuit court in the city of St. Louis,
or the circuit court in any circuit that reimburses the
state for the salaries of family court commissioners under
and pursuant to section 487.020, may change the fee to any
amount not to exceed fifteen dollars. The circuit court in
Jackson County, the circuit court in the city of St. Louis,
or the circuit court in any circuit that reimburses the
state for the salaries of family court commissioners under
and pursuant to section 487.020 may change the fee to any
amount not to exceed twenty dollars. A change in the fee
shall become effective and remain in effect until further
changed.
3. Sections 488.426 to 488.432 shall not apply to
proceedings when costs are waived or are paid by the county
or state or any city.
[4. In addition to any fee authorized by subsection 1
of this section, any county of the first classification with
more than one hundred one thousand but fewer than one
hundred fifteen thousand inhabitants may impose an
additional fee of ten dollars excluding cases concerning
adoption and those in small claims court. The provisions of
this subsection shall expire on December 31, 2019.]
513.430. 1. The following property shall be exempt
from attachment and execution to the extent of any person's
interest therein:
(1) Household furnishings, household goods, wearing
apparel, appliances, books, animals, crops or musical
instruments that are held primarily for personal, family or
105
household use of such person or a dependent of such person,
not to exceed three thousand dollars in value in the
aggregate;
(2) A wedding ring not to exceed one thousand five
hundred dollars in value and other jewelry held primarily
for the personal, family or household use of such person or
a dependent of such person, not to exceed five hundred
dollars in value in the aggregate;
(3) Any other property of any kind, not to exceed in
value six hundred dollars in the aggregate;
(4) Any implements or professional books or tools of
the trade of such person or the trade of a dependent of such
person not to exceed three thousand dollars in value in the
aggregate;
(5) Any motor vehicles, not to exceed three thousand
dollars in value in the aggregate;
(6) Any mobile home used as the principal residence
but not attached to real property in which the debtor has a
fee interest, not to exceed five thousand dollars in value;
(7) Any one or more unmatured life insurance contracts
owned by such person, other than a credit life insurance
contract, and up to fifteen thousand dollars of any matured
life insurance proceeds for actual funeral, cremation, or
burial expenses where the deceased is the spouse, child, or
parent of the beneficiary;
(8) The amount of any accrued dividend or interest
under, or loan value of, any one or more unmatured life
insurance contracts owned by such person under which the
insured is such person or an individual of whom such person
is a dependent; provided, however, that if proceedings under
Title 11 of the United States Code are commenced by or
against such person, the amount exempt in such proceedings
shall not exceed in value one hundred fifty thousand dollars
106
in the aggregate less any amount of property of such person
transferred by the life insurance company or fraternal
benefit society to itself in good faith if such transfer is
to pay a premium or to carry out a nonforfeiture insurance
option and is required to be so transferred automatically
under a life insurance contract with such company or society
that was entered into before commencement of such
proceedings. No amount of any accrued dividend or interest
under, or loan value of, any such life insurance contracts
shall be exempt from any claim for child support.
Notwithstanding anything to the contrary, no such amount
shall be exempt in such proceedings under any such insurance
contract which was purchased by such person within one year
prior to the commencement of such proceedings;
(9) Professionally prescribed health aids for such
person or a dependent of such person;
(10) Such person's right to receive:
(a) A Social Security benefit, unemployment
compensation or a public assistance benefit;
(b) A veteran's benefit;
(c) A disability, illness or unemployment benefit;
(d) Alimony, support or separate maintenance, not to
exceed seven hundred fifty dollars a month;
(e) a. Any payment under a stock bonus plan, pension
plan, disability or death benefit plan, profit-sharing plan,
nonpublic retirement plan or any plan described, defined, or
established pursuant to section 456.014, the person's right
to a participant account in any deferred compensation
program offered by the state of Missouri or any of its
political subdivisions, or annuity or similar plan or
contract on account of illness, disability, death, age or
length of service, to the extent reasonably necessary for
107
the support of such person and any dependent of such person
unless:
(i) Such plan or contract was established by or under
the auspices of an insider that employed such person at the
time such person's rights under such plan or contract arose;
(ii) Such payment is on account of age or length of
service; and
(iii) Such plan or contract does not qualify under
Section 401(a), 403(a), 403(b), 408, 408A or 409 of the
Internal Revenue Code of 1986, as amended, (26 U.S.C.
Section 401(a), 403(a), 403(b), 408, 408A or 409).
b. Notwithstanding the exemption provided in
subparagraph a. of this paragraph, any such payment to any
person shall be subject to attachment or execution pursuant
to a qualified domestic relations order, as defined by
Section 414(p) of the Internal Revenue Code of 1986 (26
U.S.C. Section 414(p)), as amended, issued by a court in any
proceeding for dissolution of marriage or legal separation
or a proceeding for disposition of property following
dissolution of marriage by a court which lacked personal
jurisdiction over the absent spouse or lacked jurisdiction
to dispose of marital property at the time of the original
judgment of dissolution;
(f) Any money or assets, payable to a participant or
beneficiary from, or any interest of any participant or
beneficiary in, a retirement plan, profit-sharing plan,
health savings plan, or similar plan, including an inherited
account or plan, that is qualified under Section 401(a),
403(a), 403(b), 408, 408A or 409 of the Internal Revenue
Code of 1986 (26 U.S.C. Section 401(a), 403(a), 403(b), 408,
408A, or 409), as amended, whether such participant's or
beneficiary's interest arises by inheritance, designation,
appointment, or otherwise, except as provided in this
108
paragraph. Any plan or arrangement described in this
paragraph shall not be exempt from the claim of an alternate
payee under a qualified domestic relations order or assignee
pursuant to a final judgment of dissolution of marriage or
legal separation; however, the interest of any and all
alternate payees under a qualified domestic relations order
or assignees pursuant to a final judgment of dissolution of
marriage or legal separation shall be exempt from any and
all claims of any creditor, other than the state of Missouri
through its department of social services, as of the time
the interest is awarded or received, and continues to be
exempt thereafter. As used in this paragraph, the terms
"alternate payee" and "qualified domestic relations order"
have the meaning given to them in Section 414(p) of the
Internal Revenue Code of 1986 (26 U.S.C. Section 414(p)), as
amended. If proceedings under Title 11 of the United States
Code are commenced by or against such person, no amount of
funds shall be exempt in such proceedings under any such
plan, contract, or trust which is fraudulent as defined in
subsection 2 of section 428.024 and for the period such
person participated within three years prior to the
commencement of such proceedings. For the purposes of this
section, when the fraudulently conveyed funds are recovered
and after, such funds shall be deducted and then treated as
though the funds had never been contributed to the plan,
contract, or trust;
(11) The debtor's right to receive, or property that
is traceable to, a payment on account of the wrongful death
of an individual of whom the debtor was a dependent, to the
extent reasonably necessary for the support of the debtor
and any dependent of the debtor;
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(12) Firearms, firearm accessories, and ammunition,
not to exceed one thousand five hundred dollars in value in
the aggregate;
(13) Any moneys accruing to and deposited in
individual savings accounts or individual deposit accounts
under sections 166.400 to 166.456 or sections 166.500 to
166.529, subject to the following provisions:
(a) This subdivision shall apply to any proceeding
that:
a. Is filed on or after January 1, 2022; or
b. Was filed before January 1, 2022, and is pending or
on appeal after January 1, 2022;
(b) Except as provided by paragraph (c) of this
subdivision, if the designated beneficiary of an individual
savings account or individual deposit account established
under sections 166.400 to 166.456 or sections 166.500 to
166.529 is a lineal descendant of the account owner, all
moneys in the account shall be exempt from any claims of
creditors of the account owner or designated beneficiary;
(c) The provisions of paragraph (b) of this
subdivision shall not apply to:
a. Claims of any creditor of an account owner as to
amounts contributed within a two-year period preceding the
date of the filing of a bankruptcy petition under 11 U.S.C.
Section 101 et seq., as amended; or
b. Claims of any creditor of an account owner as to
amounts contributed within a one-year period preceding an
execution on judgment for such claims against the account
owner.
2. Nothing in this section shall be interpreted to
exempt from attachment or execution for a valid judicial or
administrative order for the payment of child support or
maintenance any money or assets, payable to a participant or
110
beneficiary from, or any interest of any participant or
beneficiary in, a retirement plan which is qualified
pursuant to Sections 408 and 408A of the Internal Revenue
Code of 1986 (26 U.S.C. Sections 408 and 408A), as amended.
536.085. As used in section 536.087, the following
terms mean:
(1) "Agency proceeding", an adversary proceeding in a
contested case pursuant to this chapter in which the state
is represented by counsel, but does not include proceedings
for determining the eligibility or entitlement of an
individual to a monetary benefit or its equivalent, child
custody proceedings, eminent domain proceedings, driver's
license proceedings, vehicle registration proceedings,
proceedings to establish or fix a rate, or proceedings
before the state tax commission;
(2) "Party":
(a) An individual whose net worth did not exceed two
million dollars at the time the civil action or agency
proceeding was initiated; or
(b) Any owner of an unincorporated business or any
partnership, corporation, association, unit of local
government or organization, the net worth of which did not
exceed seven million dollars at the time the civil action or
agency proceeding was initiated, and which had not more than
five hundred employees at the time the civil action or
agency proceeding was initiated;
(3) "Prevails", obtains a favorable order, decision,
judgment, or dismissal in a civil action or agency
proceeding;
(4) "Reasonable fees and expenses" includes the
reasonable expenses of expert witnesses, the reasonable cost
of any study, analysis, engineering report, test, or project
which is found by the court or agency to be necessary for
111
the preparation of the party's case, and reasonable attorney
or agent fees. The amount of fees awarded as reasonable
fees and expenses shall be based upon prevailing market
rates for the kind and quality of the services furnished,
except that no expert witness shall be compensated at a rate
in excess of the highest rate of compensation for expert
witnesses paid by the state in the type of civil action or
agency proceeding[, and attorney fees shall not be awarded
in excess of seventy-five dollars per hour unless the court
determines that a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee];
(5) "State", the state of Missouri, its officers and
its agencies, but shall not include political subdivisions
of the state.
537.529. 1. This section shall be known and may be
cited as the "Uniform Public Expression Protection Act".
2. As used in this section, the following terms mean:
(1) "Governmental unit", any city, county, or other
political subdivision of this state, or any department,
division, board, or other agency of any political
subdivision of this state;
(2) "Person", an individual, estate, trust,
partnership, business or nonprofit entity, governmental
unit, or other legal entity.
3. Except as otherwise provided in subsection 4 of
this section, the provisions of this section shall apply to
any cause of action asserted in a civil action against a
person based on the person's:
(1) Communication in a legislative, executive,
judicial, administrative, or other governmental proceeding;
112
(2) Communication on an issue under consideration or
review in a legislative, executive, judicial,
administrative, or other governmental proceeding; or
(3) Exercise of the right of freedom of speech or of
the press, the right to assemble or petition, or the right
of association, guaranteed by the Constitution of the United
States or the Constitution of the state of Missouri, on a
matter of public concern.
4. The provisions of this section shall not apply to a
cause of action asserted:
(1) Against a governmental unit or an employee or
agent of a governmental unit acting or purporting to act in
an official capacity;
(2) By a governmental unit or an employee or agent of
a governmental unit acting in an official capacity to
enforce a law to protect against an imminent threat to
public health or safety; or
(3) Against a person primarily engaged in the business
of selling or leasing goods or services if the cause of
action arises out of a communication related to the person's
sale or lease of the goods or services.
As used in this subsection, the term "goods or services"
shall not include any dramatic, literary, musical,
political, journalistic, or artistic work.
5. No later than sixty days after a party is served
with a complaint, crossclaim, counterclaim, third-party
claim, or other pleading that asserts a cause of action to
which this section applies, or at a later time upon a
showing of good cause, a party may file a special motion to
dismiss the cause of action or part of the cause of action.
6. (1) Except as otherwise provided in this
subsection:
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(a) All other proceedings between the moving party and
responding party in an action, including discovery and a
pending hearing or motion, are stayed on the filing of a
motion under subsection 5 of this section; and
(b) On motion by the moving party, the court may stay:
a. A hearing or motion involving another party if the
ruling on the hearing or motion would adjudicate a legal or
factual issue that is material to the motion under
subsection 5 of this section; or
b. Discovery by another party if the discovery relates
to a legal or factual issue that is material to the motion
under subsection 5 of this section.
(2) A stay under subdivision (1) of this subsection
remains in effect until entry of an order ruling on the
motion filed under subsection 5 of this section and the
expiration of the time to appeal the order.
(3) If a party appeals from an order ruling on a
motion under subsection 5 of this section, all proceedings
between all parties in an action are stayed. The stay
remains in effect until the conclusion of the appeal.
(4) During a stay under subdivision (1) of this
subsection, the court may allow limited discovery if a party
shows that specific information is necessary to establish
whether a party has satisfied or failed to satisfy a burden
imposed by subdivision (1) of subsection 9 of this section
and is not reasonably available without discovery.
(5) A motion for costs and expenses under subsection
12 of this section shall not be subject to a stay under this
section.
(6) A stay under this subsection does not affect a
party's ability to voluntarily dismiss a cause of action or
part of a cause of action or move to sever a cause of action.
114
(7) During a stay under this section, the court for
good cause may hear and rule on:
(a) A motion unrelated to the motion under subsection
5 of this section; and
(b) A motion seeking a special or preliminary
injunction to protect against an imminent threat to public
health or safety.
7. (1) The court shall hear a motion under subsection
5 of this section no later than sixty days after filing of
the motion, unless the court orders a later hearing:
(a) To allow discovery under subdivision (4) of
subsection 6 of this section; or
(b) For other good cause.
(2) If the court orders a later hearing under
paragraph (a) of subdivision (1) of this subsection, the
court shall hear the motion under subsection 5 of this
section no later than sixty days after the court order
allowing the discovery, subject to paragraph (b) of
subdivision (1) of this subsection.
8. In ruling on a motion under subsection 5 of this
section, the court shall consider the parties' pleadings,
the motion, any replies and responses to the motion, and any
evidence that could be considered in ruling on a motion for
summary judgment.
9. (1) In ruling on a motion under subsection 5 of
this section, the court shall dismiss with prejudice a cause
of action or part of a cause of action if:
(a) The moving party establishes under subsection 3 of
this section that this section applies;
(b) The responding party fails to establish as
provided in subsection 4 of this section that this section
does not apply; and
(c) Either:
115
a. The responding party fails to establish a prima
facie case as to each essential element of the cause of
action; or
b. The moving party establishes that:
(i) The responding party failed to state a cause of
action upon which relief can be granted; or
(ii) There is no genuine issue as to any material fact
and the party is entitled to judgment as a matter of law on
the cause of action or part of the cause of action.
(2) A voluntary dismissal without prejudice of a
responding party's cause of action, or part of a cause of
action, that is the subject of a motion under subsection 5
of this section does not affect a moving party's right to
obtain a ruling on the motion and seek costs, reasonable
attorney's fees, and reasonable litigation expenses under
subsection 12 of this section.
(3) A voluntary dismissal with prejudice of a
responding party's cause of action, or part of a cause of
action, that is the subject of a motion under subsection 5
of this section establishes for the purpose of subsection 12
of this section that the moving party prevailed on the
motion.
10. The court shall rule on a motion under subsection
5 of this section no later than sixty days after the hearing
under subsection 7 of this section.
11. A moving party may appeal within twenty-one days
as a matter of right from an order denying, in whole or in
part, a motion under subsection 5 of this section.
12. On a motion under subsection 5 of this section,
the court shall award costs, reasonable attorney's fees, and
reasonable litigation expenses related to the motion:
(1) To the moving party if the moving party prevails
on the motion; or
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(2) To the responding party if the responding party
prevails on the motion and the court finds that the motion
was frivolous or filed solely with intent to delay the
proceeding.
13. This section shall be broadly construed and
applied to protect the exercise of the right of freedom of
speech and of the press, the right to assemble and petition,
and the right of association, guaranteed by the Constitution
of the United States or the Constitution of the state of
Missouri.
14. In applying and construing this section,
consideration shall be given to the need to promote
uniformity of the law with respect to its subject matter
among states that enact it.
15. The provisions of this section shall apply to any
civil action filed, or any cause of action asserted in a
civil action, on or after August 28, 2026.
[469.409. 1. Any claim for breach of a
trustee's duty to impartially administer a trust
related, directly or indirectly, to an
adjustment made by a fiduciary to the allocation
between principal and income pursuant to
subsection 1 of section 469.405 or any
allocation made by the fiduciary pursuant to any
authority or discretion specified in subsection
1 of section 469.403, unless previously barred
by adjudication, consent or other limitation,
shall be barred as provided in this section.
(1) Any such claim brought by a qualified
beneficiary is barred if not asserted in a
judicial proceeding commenced within two years
after the trustee has sent a report to that
qualified beneficiary that adequately discloses
the facts constituting the claim.
(2) Any such claim brought by a
beneficiary (other than a qualified beneficiary)
with any interest whatsoever in the trust, no
matter how remote or contingent, or whether or
not the beneficiary is ascertainable or has the
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capacity to contract, is barred if not asserted
in a judicial proceeding commenced within two
years after the first to occur of:
(a) The date the trustee sent a report to
all qualified beneficiaries that adequately
discloses the facts constituting the claim; or
(b) The date the trustee sent a report to
a person that represents the beneficiary under
the provisions of subdivision (2) of subsection
2 of this section.
2. For purposes of this section the
following rules shall apply:
(1) A report adequately discloses the
facts constituting a claim if it provides
sufficient information so that the beneficiary
should know of the claim or reasonably should
have inquired into its existence;
(2) Section 469.402 shall apply in
determining whether a beneficiary (including a
qualified beneficiary) has received notice for
purposes of this section;
(3) The determination of the identity of
all qualified beneficiaries shall be made on the
date the report is deemed to have been sent; and
(4) This section does not preclude an
action to recover for fraud or misrepresentation
related to the report.]
[469.411. 1. (1) If the provisions of
this section apply to a trust, the unitrust
amount determined for each accounting year of
the trust shall be a percentage between three
and five percent of the average net fair market
value of the trust, as of the first day of the
trust's current accounting year. The percentage
applicable to a trust shall be that percentage
specified by the terms of the governing
instrument or by the election made in accordance
with subdivision (2) of subsection 5 of this
section.
(2) The unitrust amount for the current
accounting year computed pursuant to this
section shall be proportionately reduced for any
distributions, in whole or in part, other than
distributions of the unitrust amount, and for
any payments of expenses, including debts,
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disbursements and taxes, from the trust within a
current accounting year that the trustee
determines to be material and substantial, and
shall be proportionately increased for the
receipt, other than a receipt that represents a
return on investment, of any additional property
into the trust within a current accounting year.
(3) For purposes of this section, the net
fair market values of the assets held in the
trust on the first business day of a prior
accounting quarter shall be adjusted to reflect
any reduction, in the case of a distribution or
payment, or increase, in the case of a receipt,
for the prior accounting year pursuant to
subdivision (1) of this subsection, as if the
distribution, payment or receipt had occurred on
the first day of the prior accounting year.
(4) In the case of a short accounting
period, the trustee shall prorate the unitrust
amount on a daily basis.
(5) In the case where the net fair market
value of an asset held in the trust has been
incorrectly determined in any quarter, the
unitrust amount shall be increased in the case
of an undervaluation, or be decreased in the
case of an overvaluation, by an amount equal to
the difference between the unitrust amount
determined based on the correct valuation of the
asset and the unitrust amount originally
determined.
2. As used in this section, the following
terms mean:
(1) "Average net fair market value", a
rolling average of the fair market value of the
assets held in the trust on the first business
day of the lessor of the number of accounting
quarters of the trust from the date of inception
of the trust to the determination of the trust's
average net fair market value, or twelve
accounting quarters of the trust, regardless of
whether this section applied to the
ascertainment of net income for all valuation
quarters;
(2) "Current accounting year", the
accounting period of the trust for which the
unitrust amount is being determined.
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3. In determining the average net fair
market value of the assets held in the trust,
there shall not be included the value of:
(1) Any residential property or any
tangible personal property that, as of the first
business day of the current valuation year, one
or more income beneficiaries of the trust have
or had the right to occupy, or have or had the
right to possess or control, other than in a
capacity as trustee, and instead the right of
occupancy or the right to possession or control
shall be deemed to be the unitrust amount with
respect to the residential property or the
tangible personal property; or
(2) Any asset specifically given to a
beneficiary under the terms of the trust and the
return on investment on that asset, which return
on investment shall be distributable to the
beneficiary.
4. In determining the average net fair
market value of the assets held in the trust
pursuant to subsection 1 of this section, the
trustee shall, not less often than annually,
determine the fair market value of each asset of
the trust that consists primarily of real
property or other property that is not traded on
a regular basis in an active market by appraisal
or other reasonable method or estimate, and that
determination, if made reasonably and in good
faith, shall be conclusive as to all persons
interested in the trust. Any claim based on a
determination made pursuant to this subsection
shall be barred if not asserted in a judicial
proceeding brought by any beneficiary with any
interest whatsoever in the trust within two
years after the trustee has sent a report to all
qualified beneficiaries that adequately
discloses the facts constituting the claim. The
rules set forth in subsection 2 of section
469.409 shall apply to the barring of claims
pursuant to this subsection.
5. This section shall apply to the
following trusts:
(1) Any trust created after August 28,
2001, with respect to which the terms of the
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trust clearly manifest an intent that this
section apply;
(2) Any trust created under an instrument
that became irrevocable on, before, or after
August 28, 2001, if the trustee, in the
trustee's discretion, elects to have this
section apply unless the instrument creating the
trust specifically prohibits an election under
this subdivision. The trustee shall deliver
notice to all qualified beneficiaries and the
settlor of the trust, if he or she is then
living, of the trustee's intent to make such an
election at least sixty days before making that
election. The trustee shall have sole authority
to make the election. Section 469.402 shall
apply for all purposes of this subdivision. An
action or order by any court shall not be
required. The election shall be made by a
signed writing delivered to the settlor of the
trust, if he or she is then living, and to all
qualified beneficiaries. The election is
irrevocable, unless revoked by order of the
court having jurisdiction of the trust. The
election may specify the percentage used to
determine the unitrust amount pursuant to this
section, provided that such percentage is
between three and five percent, or if no
percentage is specified, then that percentage
shall be three percent. In making an election
pursuant to this subsection, the trustee shall
be subject to the same limitations and
conditions as apply to an adjustment between
income and principal pursuant to subsections 3
and 4 of section 469.405; and
(3) No action of any kind based on an
election made by a trustee pursuant to
subdivision (2) of this subsection shall be
brought against the trustee by any beneficiary
of that trust three years from the effective
date of that election.
6. (1) Once the provisions of this
section become applicable to a trust, the net
income of the trust shall be the unitrust amount.
(2) Unless otherwise provided by the
governing instrument, the unitrust amount
distributed each year shall be paid from the
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following sources for that year up to the full
value of the unitrust amount in the following
order:
(a) Net income as determined if the trust
were not a unitrust;
(b) Other ordinary income as determined
for federal income tax purposes;
(c) Assets of the trust principal for
which there is a readily available market value;
and
(d) Other trust principal.
(3) Additionally, the trustee may allocate
to trust income for each taxable year of the
trust, or portion thereof:
(a) Net short-term capital gain described
in the Internal Revenue Code, 26 U.S.C. Section
1222(5), for such year, or portion thereof, but
only to the extent that the amount so allocated
together with all other amounts to trust income,
as determined under the provisions of this
chapter without regard to this section, for such
year, or portion thereof, does not exceed the
unitrust amount for such year, or portion
thereof;
(b) Net long-term capital gain described
in the Internal Revenue Code, 26 U.S.C. Section
1222(7), for such year, or portion thereof, but
only to the extent that the amount so allocated
together with all other amounts, including
amounts described in paragraph (a) of this
subdivision, allocated to trust income for such
year, or portion thereof, does not exceed the
unitrust amount for such year, or portion
thereof.
7. A trust with respect to which this
section applies on August 28, 2011, may
calculate the unitrust amount in accordance with
the provisions of this section, as it existed
either before or after such date, as the trustee
of such trust shall determine in a writing kept
with the records of the trust in the trustee's
discretion.]
[469.461. 1. A fiduciary may make
adjustments between principal and income to
offset the shifting of economic interests or tax
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benefits between income beneficiaries and
remainder beneficiaries which arise from:
(1) Elections and decisions, other than
those described in subsection 2 of this section,
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.
2. 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 shall 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 shall
be the same as its proportionate share of the
total decrease in income tax. An estate or
trust shall reimburse principal from income.]
[537.528. 1. Any action against a person
for conduct or speech undertaken or made in
connection with a public hearing or public
meeting, in a quasi-judicial proceeding before a
tribunal or decision-making body of the state or
any political subdivision of the state is
subject to a special motion to dismiss, motion
for judgment on the pleadings, or motion for
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summary judgment that shall be considered by the
court on a priority or expedited basis to ensure
the early consideration of the issues raised by
the motion and to prevent the unnecessary
expense of litigation. Upon the filing of any
special motion described in this subsection, all
discovery shall be suspended pending a decision
on the motion by the court and the exhaustion of
all appeals regarding the special motion.
2. If the rights afforded by this section
are raised as an affirmative defense and if a
court grants a motion to dismiss, a motion for
judgment on the pleadings or a motion for
summary judgment filed within ninety days of the
filing of the moving party's answer, the court
shall award reasonable attorney fees and costs
incurred by the moving party in defending the
action. If the court finds that a special
motion to dismiss or motion for summary judgment
is frivolous or solely intended to cause
unnecessary delay, the court shall award costs
and reasonable attorney fees to the party
prevailing on the motion.
3. Any party shall have the right to an
expedited appeal from a trial court order on the
special motions described in subsection 2 of
this section or from a trial court's failure to
rule on the motion on an expedited basis.
4. As used in this section, a "public
meeting in a quasi-judicial proceeding" means
and includes any meeting established and held by
a state or local governmental entity, including
without limitations meetings or presentations
before state, county, city, town or village
councils, planning commissions, review boards or
commissions.
5. Nothing in this section limits or
prohibits the exercise of a right or remedy of a
party granted pursuant to another
constitutional, statutory, common law or
administrative provision, including civil
actions for defamation.
6. If any provision of this section or the
application of any provision of this section to
a person or circumstance is held invalid, the
invalidity shall not affect other provisions or
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applications of this section that can be given
effect without the invalid provision or
application, and to this end the provisions of
this section are severable.
7. The provisions of this section shall
apply to all causes of actions.]