Modifies provisions relating to trusts

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1623
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR TRENT.
6919S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 428.049, 456.031, 456.1-103, 456.4-419, 456.5-505, and 456.8-808, RSMo, and
to enact in lieu thereof six new sections relating to trusts.

Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 428.049, 456.031, 456.1-103, 456.4-1
419, 456.5-505, and 456.8-808, RSMo, are repealed and six new 2
sections enacted in lieu thereof, to be known as sections 3
428.049, 456.031, 456.1-103, 456.4-419, 456.5-505, and 456.8-4
808, to read as follows:5
428.049. A claim for relief or cause of action with 1
respect to a fraudulent transfer or obligation under 2
sections 428.005 to 428.059 is extinguished unless action is 3
brought: 4
(1) Under subdivision (1) of subsection 1 of section 5
428.024, within [four] two years after the transfer was made 6
or the obligation was incurred or, if later, within [one 7
year] six months after the transfer or obligation was or 8
could reasonably have been discovered by the claimant; 9
(2) Under subdivision (2) of subsection 1 of section 10
428.024 or subsection 1 of section 428.029, within [four] 11
two years after the transfer was made or the obligation was 12
incurred; or 13
SB 1623 2
(3) Under subsection 2 of section 428.029, within [one 14
year] six months after the transfer was made or the 15
obligation was incurred. 16
456.031. 1. The clerk of the probate division of the 1
circuit court shall keep a record for each trust so 2
registered, including trust registration statements, 3
petitions and applications, demands for notices or bonds, 4
and of any orders or responses relating thereto by the 5
court, and establish and maintain a system for indexing, 6
filing or recording which is sufficient to enable users of 7
the records to identify and obtain information about such 8
registered trusts. Upon payment of the fees required by law 9
the clerk must issue certified copies of any record or paper 10
filed or recorded. 11
2. Notwithstanding any other provision of law to the 12
contrary, upon the filing of any petition, the instrument on 13
which the trust is based, briefs, and the entire court 14
record, including a trust's inventory, statement filed by 15
any fiduciary, annual verified report of a fiduciary, final 16
report of a fiduciary, and all petitions relevant to trust 17
administration and all court orders thereon shall be sealed 18
upon filing and may not be made a part of the public record 19
of the proceeding, but are available to the court, to the 20
trustor, to any fiduciary, to any enforcer, to any 21
beneficiary or the beneficiary's representative, to their 22
attorneys, and to such other interested persons as the court 23
may order upon a showing of need. 24
456.1-103. In sections 456.1-101 to 456.11-1106, the 1
following terms shall mean: 2
(1) "Action", with respect to an act of a trustee, 3
includes a failure to act; 4
SB 1623 3
(2) "Ascertainable standard", a standard relating to 5
an individual's health, education, support, or maintenance 6
within the meaning of Section 2041(b)(1)(A) or Section 7
[2541(c)(1)] 2514(c)(1) of the Internal Revenue Code; 8
(3) "Beneficiary", a person that: 9
(a) Has a present or future beneficial interest in a 10
trust, vested or contingent; or 11
(b) In a capacity other than that of trustee, holds a 12
power of appointment over trust property; 13
(4) "Charitable trust", a trust, or portion of a 14
trust, created for a charitable purpose described in 15
subsection 1 of section 456.4-405; 16
(5) "Conservator", a person described in subdivision 17
(3) of section 475.010. This term does not include a 18
conservator ad litem; 19
(6) "Conservator ad litem", a person appointed by the 20
court pursuant to the provisions of section 475.097; 21
(7) ["Directed trust", any trust, including a split 22
interest trust, in which the trust instrument: 23
(a) Authorizes a trust protector to instruct or direct 24
the trustee; 25
(b) Charges a trust protector with any 26
responsibilities regarding the trust; 27
(c) Grants the trust protector one or more powers over 28
the trust; or 29
(d) Directs one or more powers over the trust to a 30
person, who is not serving as a trustee, and is not a 31
settlor or a beneficiary; 32
(8)] "Environmental law", a federal, state, or local 33
law, rule, regulation, or ordinance relating to protection 34
of the environment; 35
SB 1623 4
[(9)] (8) "Financial institution", a non-foreign bank, 36
savings and loan or trust company chartered, regulated and 37
supervised by the Missouri division of finance, the office 38
of the comptroller of the currency, the office of thrift 39
supervision, the National Credit Union Administration, or 40
the Missouri division of credit union supervision. The term 41
"non-foreign bank" shall mean a bank that is not a foreign 42
bank within the meaning of subdivision (1) of section 43
361.005; 44
[(10)] (9) "Guardian", a person described in 45
subdivision (8) of section 475.010. The term does not 46
include a guardian ad litem; 47
[(11)] (10) "Interested persons", include 48
beneficiaries and any others having a property right in or 49
claim against a trust estate which may be affected by a 50
judicial proceeding. It also includes fiduciaries and other 51
persons representing interested persons. The meaning as it 52
relates to particular persons may vary from time to time and 53
must be determined according to the particular purposes of, 54
and matter involved in, any proceeding; 55
[(12)] (11) "Interests of the beneficiaries", the 56
beneficial interests provided in the terms of the trust; 57
[(13)] (12) "Internal Revenue Code", the United States 58
Internal Revenue Code of 1986, as in effect on January 1, 59
2005, or as later amended; 60
[(14)] (13) "Jurisdiction", with respect to a 61
geographic area, includes a state or country; 62
[(15)] (14) "Person", an individual, corporation, 63
business trust, estate, trust, partnership, limited 64
liability company, association, joint venture, government; 65
governmental subdivision, agency, or instrumentality; public 66
corporation, or any other legal or commercial entity; 67
SB 1623 5
[(16)] (15) "Permissible distributee", a beneficiary 68
who is currently eligible to receive distributions of trust 69
income or principal, whether mandatory or discretionary; 70
[(17)] (16) "Power of withdrawal", a presently 71
exercisable power of a beneficiary to withdraw assets from 72
the trust without the consent of the trustee or any other 73
person; 74
[(18)] (17) "Principal place of administration", of a 75
trust is the trustee's usual place of business where the 76
records pertaining to the trust are kept, or the trustee's 77
residence if the trustee has no such place of business, 78
unless otherwise designated by the terms of the trust as 79
provided in section 456.1-108. In the case of cotrustees, 80
the principal place of administration is, in the following 81
order of priority: 82
(a) The usual place of business of the corporate 83
trustee if there is but one corporate cotrustee; 84
(b) The usual place of business or residence of the 85
trustee who is a professional fiduciary if there is but one 86
such trustee and no corporate cotrustee; or 87
(c) The usual place of business or residence of any of 88
the cotrustees; 89
[(19)] (18) "Professional fiduciary", an individual 90
who represents himself or herself to the public as having 91
specialized training, experience or skills in the 92
administration of trusts; 93
[(20)] (19) "Property", anything that may be the 94
subject of ownership, whether real or personal, legal or 95
equitable, or any interest therein; 96
[(21)] (20) "Qualified beneficiary", a beneficiary 97
who, on the date the beneficiary's qualification is 98
determined: 99
SB 1623 6
(a) Is a permissible distributee; 100
(b) Would be a permissible distributee if the 101
interests of the permissible distributees described in 102
paragraph (a) of this subdivision terminated on that date; or 103
(c) Would be a permissible distributee if the trust 104
terminated on that date; 105
[(22)] (21) "Record", information that is inscribed on 106
a tangible medium or that is stored in an electronic or 107
other medium and is retrievable in perceivable form; 108
[(23)] (22) "Revocable", as applied to a trust, means 109
that the settlor has the legal power to revoke the trust 110
without the consent of the trustee or a person holding an 111
adverse interest, regardless of whether the settlor has the 112
mental capacity to do so in fact; 113
[(24)] (23) "Settlor", a person, including a testator, 114
who creates, or contributes property to, a trust. If more 115
than one person creates or contributes property to a trust, 116
each person is a settlor of the portion of the trust 117
property attributable to that person's contribution except 118
to the extent another person has the power to revoke or 119
withdraw that portion pursuant to the terms of the trust; 120
[(25)] (24) "Sign", with present intent to 121
authenticate or adopt a record: 122
(a) To execute or adopt a tangible symbol; or 123
(b) To attach to or logically associate with the 124
record an electronic sound, symbol, or process; 125
[(26)] (25) "Spendthrift provision", a term of a trust 126
which restrains either the voluntary or involuntary transfer 127
or both the voluntary and involuntary transfer of a 128
beneficiary's interest; 129
[(27)] (26) "State", a state of the United States, the 130
District of Columbia, Puerto Rico, the United States Virgin 131
SB 1623 7
Islands, or any territory or insular possession subject to 132
the jurisdiction of the United States. The term includes an 133
Indian tribe or band recognized by federal law or formally 134
acknowledged by a state; 135
[(28)] (27) "Terms of a trust", the manifestation of 136
the settlor's intent regarding a trust's provisions as 137
expressed in the trust instrument or as may be established 138
by other evidence that would be admissible in a judicial 139
proceeding; 140
[(29)] (28) "Trust instrument", an instrument executed 141
by the settlor that contains terms of the trust, including 142
any amendments thereto; 143
[(30) "Trust protector", any person, group of persons, 144
or entity not serving as a trustee and not the settlor or a 145
beneficiary, designated in a trust instrument to instruct or 146
direct the trustee or charged in the trust instrument with 147
any responsibilities regarding the trust or expressly 148
granted in the trust instrument one or more powers over the 149
trust. The term trust protector includes, but is not 150
limited to, persons or entities identified in the trust 151
instrument as trust advisors, trust directors, distribution 152
advisors, or investment advisors; 153
(31)] (29) "Trustee", includes an original, 154
additional, and successor trustee, and a cotrustee. 155
456.4-419. 1. Unless the terms of the trust 1
instrument expressly provide otherwise, a trustee, other 2
than a settlor, who has discretionary power under the terms 3
of a trust to make a distribution of income or principal, 4
whether or not limited by an ascertainable standard, to or 5
for the benefit of one or more beneficiaries of a trust, the 6
first trust, may instead exercise such discretionary power, 7
independently or with court approval, by distributing all or 8
SB 1623 8
part of the income or principal subject to such 9
discretionary power in favor of a trustee of a second trust, 10
the second trust, created under either the same or different 11
trust instrument in the event that the trustee of the first 12
trust decides that the distribution is necessary or 13
desirable after taking into account the terms and purposes 14
of the first trust, the terms and purposes of the second 15
trust, and the consequences of the distribution. A trustee 16
may exercise the power described in this subsection by 17
distributing property from the first trust to one or more 18
second trusts or by modifying the trust instrument for the 19
first trust which, as modified, becomes one or more second 20
trusts. 21
2. With respect to a second trust to which a 22
distribution is made pursuant to subsection 1 of this 23
section: 24
(1) At least one permissible distributee of the first 25
trust shall be a permissible distributee of the second trust 26
immediately after the distribution; 27
(2) If, at the time of the distribution, the settlor 28
of the first trust is living and the first trust is not a 29
grantor trust under Subpart E of Part I of Subchapter J of 30
Chapter 1 of the Internal Revenue Code of 1986, as amended, 31
there may not be any permissible distributee of the second 32
trust immediately after the distribution who is not a 33
permissible distributee of the first trust; 34
(3) If, at the time of the distribution, the settlor 35
of the first trust is deceased or if, at the time of the 36
distribution, the first trust is a grantor trust under 37
Subpart E of Part I of Subchapter J of Chapter 1 of the 38
Internal Revenue Code of 1986, as amended, for reasons other 39
than the trustee having the power granted by this section, 40
SB 1623 9
any beneficiary of the first trust may be included as a 41
permissible distributee of the second trust immediately 42
after the distribution; 43
(4) The second trust may not include any beneficiary 44
who is not a beneficiary of the first trust; and 45
(5) The trust instrument for the second trust may 46
retain, modify, or omit a power of appointment granted in 47
the first trust, and the trust instrument for the second 48
trust may create a power of appointment if the powerholder 49
is a beneficiary of the second trust. Except to the extent 50
provided otherwise in subsection 4 of this section, a power 51
of appointment in the trust instrument for the second trust 52
may be a general or nongeneral power of appointment and the 53
permissible appointees of the power need not be limited to 54
the beneficiaries of the first trust. 55
3. The following provisions apply to a trust that has 56
a beneficiary with a disability: 57
(1) As used in this subsection, the following terms 58
mean: 59
(a) "Beneficiary with a disability", a beneficiary of 60
a first trust who the special-needs fiduciary believes may 61
qualify for governmental benefits based on disability, 62
whether or not the beneficiary currently receives those 63
benefits or is an individual who has been adjudicated 64
disabled or adjudicated incapacitated; 65
(b) "Governmental benefits", financial aid or services 66
from a state, federal, or other public agency; 67
(c) "Special-needs fiduciary", with respect to a trust 68
that has a beneficiary with a disability: 69
a. A trustee or other fiduciary, other than a settlor, 70
who has discretionary power under the terms of a trust to 71
make a distribution of income or principal, whether or not 72
SB 1623 10
limited by an ascertainable standard, to or for the benefit 73
of one or more beneficiaries; or 74
b. If no trustee or fiduciary has discretion under 75
subparagraph a. of this paragraph, a trustee or other 76
fiduciary, other than a settlor, who is required to 77
distribute part or all of the income or principal of the 78
first trust to or for the benefit of one or more 79
beneficiaries; 80
(d) "Special-needs trust", a trust the trustee 81
believes would not be considered a resource for purposes of 82
determining whether a beneficiary with a disability is 83
eligible for governmental benefits; 84
(2) A special-needs fiduciary may exercise the 85
authority granted by subsection 1 of this section if: 86
(a) A second trust is a special-needs trust that 87
benefits the beneficiary with a disability; and 88
(b) The special-needs fiduciary determines that 89
exercise of the authority pursuant to subsection 1 of this 90
section will further the purposes of the first trust; and 91
(3) The following provisions apply to any exercise of 92
the authority granted by this subsection: 93
(a) Notwithstanding the provisions of subdivision (4) 94
of subsection 2 of this section to the contrary, the terms 95
of the second trust may: 96
a. Provide that an interest is held by a pooled trust 97
as defined by Medicaid law for the benefit of the 98
beneficiary with a disability under 42 U.S.C. Section 99
1396p(d)(4)(C); or 100
b. Contain payback provisions complying with 101
reimbursement requirements of Medicaid law under 42 U.S.C. 102
Section 1396p(d)(4)(A); 103
SB 1623 11
(b) The provisions of subdivision (3) of subsection 4 104
of this section shall not apply to the interests of the 105
beneficiary with a disability; and 106
(c) Except as affected by any change to the interests 107
of the beneficiary with a disability, the second trust, or 108
if there are two or more second trusts, the second trusts in 109
the aggregate, shall grant each other beneficiary of the 110
first trust beneficial interests in the second trusts which 111
are substantially similar to the beneficiary's beneficial 112
interests in the first trust, unless such other 113
beneficiary's interest is modified in accordance with the 114
provisions of this section other than this subsection. 115
4. The following provisions apply to any exercise of 116
the authority granted by subsection 1 of this section: 117
(1) If the exercise of the authority granted by 118
subsection 1 of this section is limited by an ascertainable 119
standard and the trustee exercising such authority is a 120
permissible distributee of the first trust under such 121
standard, then: 122
(a) The discretionary power under the trust instrument 123
for the second trust to distribute income or principal to 124
such trustee as a permissible distributee shall be subject 125
to the same ascertainable standard as, or a more restrictive 126
ascertainable standard than, such standard in the trust 127
instrument for the first trust; and 128
(b) The trust instrument for the second trust shall 129
not: 130
a. Modify a power of appointment granted to such 131
trustee in the first trust; or 132
b. Grant a power of appointment to such trustee that 133
did not exist in the first trust; 134
SB 1623 12
(2) An exercise of the authority granted by subsection 135
1 of this section is subject to the following limitations: 136
(a) If the first trust contains property that 137
qualified, or would have qualified but for provisions of 138
this section other than this subdivision, for a marital 139
deduction for purposes of the gift or estate tax under the 140
Internal Revenue Code of 1986, as amended, the trust 141
instrument for the second trust shall not include or omit 142
any term that, if included in or omitted from the trust 143
instrument for the second trust, would have prevented the 144
transfer from qualifying for the deduction, or would have 145
reduced the amount of the deduction, under the same 146
provisions of the Internal Revenue Code under which the 147
transfer qualified; 148
(b) If the first trust contains property that 149
qualified, or would have qualified but for provisions of 150
this section other than this subdivision, for a charitable 151
deduction for purposes of the income, gift, or estate tax 152
under the Internal Revenue Code of 1986, as amended, the 153
trust instrument for the second trust shall not include or 154
omit any term that, if included in or omitted from the trust 155
instrument for the second trust, would have prevented the 156
transfer from qualifying for the deduction, or would have 157
reduced the amount of the deduction, under the same 158
provisions of the Internal Revenue Code under which the 159
transfer qualified; 160
(c) If the first trust contains property that 161
qualified, or would have qualified but for provisions of 162
this section other than this subdivision, for the exclusion 163
from the gift tax described in Section 2503(b) of the 164
Internal Revenue Code of 1986, as amended, the trust 165
instrument for the second trust shall not include or omit a 166
SB 1623 13
term that, if included in or omitted from the trust 167
instrument for the second trust, would have prevented the 168
transfer from qualifying under Section 2503(b) of the 169
Internal Revenue Code. If the first trust contains property 170
that qualified, or would have qualified but for provisions 171
of this section other than this subdivision, for the 172
exclusion from the gift tax described in Section 2503(b) of 173
the Internal Revenue Code, by application of Section 2503(c) 174
of the Internal Revenue Code, the trust instrument for the 175
second trust shall not include or omit a term that, if 176
included or omitted from the trust instrument for the second 177
trust, would have prevented the transfer from meeting the 178
requirements of Section 2503(c) of the Internal Revenue Code; 179
(d) If the property of the first trust includes shares 180
of stock in an S corporation, as defined in Section 1361 of 181
the Internal Revenue Code of 1986, as amended, and the first 182
trust is, or but for provisions of this section other than 183
this subdivision would be, a permitted shareholder under any 184
provision of Section 1361 of the Internal Revenue Code, the 185
trustee of the first trust may exercise such authority with 186
respect to part or all of the S corporation stock only if 187
the second trust receiving the stock is a permitted 188
shareholder under Section 1361(c)(2) of the Internal Revenue 189
Code. If the property of the first trust includes shares of 190
stock in an S corporation and the first trust is, or but for 191
provisions of this section other than this subdivision would 192
be, a qualified subchapter-S trust within the meaning of 193
Section 1361(d) of the Internal Revenue Code, the trust 194
instrument for the second trust shall not include or omit a 195
term that prevents the second trust from qualifying as a 196
qualified subchapter-S trust; and 197
SB 1623 14
(e) If the first trust contains property that 198
qualified, or would have qualified but for provisions of 199
this section other than this subdivision, for a zero 200
inclusion ratio for purpose of the generation-skipping 201
transfer tax under Section 2642(c) of the Internal Revenue 202
Code of 1986, as amended, the trust instrument for the 203
second trust shall not include or omit a term that, if 204
included in or omitted from the first trust, would have 205
prevented the transfer to the first trust from qualifying 206
for a zero inclusion ratio under Section 2642(c) of the 207
Internal Revenue Code; 208
(3) The exercise of such authority does not apply to 209
trust property subject to a presently exercisable power of 210
withdrawal held by a trust beneficiary to whom, or for the 211
benefit of whom, the trustee has authority to make 212
distributions, unless after the exercise of such authority, 213
such beneficiary's power of withdrawal is unchanged with 214
respect to the trust property; and 215
(4) A spendthrift clause or a provision in the trust 216
instrument that prohibits amendment or revocation of the 217
trust shall not preclude the trustee from exercising the 218
authority granted by subsection 1 of this section. 219
5. At least sixty days prior to making a discretionary 220
distribution under subsection 1 of this section, the trustee 221
of the first trust shall notify the permissible distributees 222
of the first trust and the permissible distributees of the 223
second trust of the distribution. A beneficiary may waive 224
the right to the notice required by this subsection and, 225
with respect to future distributions, may withdraw a waiver 226
previously given. 227
6. In exercising the authority granted by subsection 1 228
of this section, the trustee shall remain subject to all 229
SB 1623 15
fiduciary duties otherwise imposed under the trust 230
instrument and Missouri law. 231
7. This section does not impose on a trustee a duty to 232
exercise the authority granted by subsection 1 of this 233
section in favor of another trust or to consider exercising 234
such authority in favor of another trust. 235
8. A second trust may have a duration that is the same 236
as or different from the duration of the first trust. 237
However, to the extent that property of the second trust is 238
attributable to property of the first trust, the property of 239
the second trust is subject to any rules governing maximum 240
perpetuity, accumulation, or suspension of the power of 241
alienation which apply to property of the first trust. The 242
perpetuities period and any other time limitation on the 243
vesting of an interest applicable to the first trust shall 244
apply to property of the second trust as if the second trust 245
had been created on the date the first trust was created. 246
The provisions of this subsection shall not preclude the 247
creation of a general power of appointment in the trust 248
instrument for a second trust as authorized by subdivision 249
(5) of subsection 2 of this section. 250
9. In the event the trust instrument for the second 251
trust in part does not comply with this section but would 252
otherwise be effective under this section, the exercise of 253
the power is effective and the following rules apply with 254
respect to the principal of the second trust attributable to 255
the exercise of the power: 256
(1) A provision in the trust instrument for the second 257
trust which is not permitted under this section is void to 258
the extent necessary to comply with this section; and 259
(2) A provision required by this section to be in the 260
trust instrument for the second trust which is not contained 261
SB 1623 16
in the trust instrument is deemed to be included in the 262
trust instrument to the extent necessary to comply with this 263
section. 264
10. This section is intended to codify and, from and 265
after enactment, to provide certain limitations to the 266
common law of this state, and this section applies to any 267
trust governed by the laws of this state, including a trust 268
whose principal place of administration is transferred to 269
this state before or after the enactment of this section. 270
456.5-505. 1. Whether or not the terms of a trust 1
contain a spendthrift provision, during the lifetime of the 2
settlor, the property of a revocable trust is subject to 3
claims of the settlor's creditors. 4
2. With respect to an irrevocable trust without a 5
spendthrift provision, a creditor or assignee of the settlor 6
may reach the maximum amount that can be distributed to or 7
for the settlor's benefit. If a trust has more than one 8
settlor, the amount the creditor or assignee of a particular 9
settlor may reach may not exceed the settlor's interest in 10
the portion of the trust attributable to that settlor's 11
contribution. 12
3. With respect to an irrevocable trust with a 13
spendthrift provision, a spendthrift provision will prevent 14
the settlor's creditors from satisfying claims from the 15
trust assets except: 16
(1) Where the conveyance of assets to the trust was 17
fraudulent as to creditors pursuant to the provisions of 18
chapter 428; or 19
(2) To the extent of the settlor's beneficial interest 20
in the trust assets, if at the time the trust became 21
irrevocable: 22
SB 1623 17
(a) The settlor was the sole beneficiary of either the 23
income or principal of the trust or retained the power to 24
amend the trust; or 25
(b) The settlor was one of a class of beneficiaries 26
and retained a right to receive a specific portion of the 27
income or principal of the trust that was determinable 28
solely from the provisions of the trust instrument. 29
4. In the event that a trust meets the requirements 30
set forth in subsection 3 of this section, a settlor's 31
creditors may not reach the settlor's beneficial interest in 32
that trust, regardless of: 33
(1) Any testamentary power of appointment that is 34
exercisable by the settlor, by a will or other written 35
instrument, in favor of any appointees other than the 36
settlor, the settlor's estate, the settlor's creditors, or 37
the creditors of the settlor's estate; or 38
(2) The settlor's power to veto distributions from the 39
trust. 40
5. Any trustee who has a duty or power to pay the 41
debts of a deceased settlor may publish a notice in a 42
newspaper published in the county designated in subdivision 43
(3) of this subsection once a week for four consecutive 44
weeks in substantially the following form: 45
46
47
48
49
50
51
52
53
To all persons interested in the
estate of _________ , decedent. The
undersigned _________ is acting as Trustee
under a trust the terms of which provide
that the debts of the decedent may be paid
by the Trustee(s) upon receipt of proper
proof thereof. The address of the Trustee
is _________ .

SB 1623 18
(1) If such publication is duly made by the trustee, 60
any debts not presented to the trustee within six months 61
from the date of the first publication of the preceding 62
notice shall be forever barred as against the trustee and 63
the trust property. 64
(2) A trustee shall not be liable to account to the 65
decedent's personal representative under the provisions of 66
section 461.300 by reason of any debt barred under the 67
provisions of this subsection. 68
(3) Such publication shall be in a newspaper published 69
in: 70
(a) The county in which the domicile of the settlor at 71
the time of his or her death is situated; 72
(b) If the settlor had no domicile in this state at 73
the time of his or her death, any county wherein trust 74
assets are located; except that, when the major part of the 75
trust assets in this state consist of real estate, the 76
notice shall be published in the county in which the real 77
estate or the major part thereof is located; or 78
(c) If the settlor had no domicile in this state at 79
the time of his or her death and no trust assets are located 80
therein, the county wherein the principal place of 81
administration of the trust is located. 82
(4) For purposes of this subsection, the term 83
"domicile" means the place in which the settlor voluntarily 84
54
55
56
57
58
All creditors of the decedent are
noticed to present their claims to the
undersigned within six (6) months from the
date of the first publication of this
notice or be forever barred.

59 __________________ Trustee
SB 1623 19
fixed his or her abode, not for a mere special or temporary 85
purpose, but with a present intention of remaining there 86
permanently or for an indefinite term. 87
6. For purposes of this section: 88
(1) During the period the power may be exercised, the 89
holder of a power of withdrawal is treated in the same 90
manner as the settlor of a revocable trust to the extent of 91
the property subject to the power; and 92
(2) Upon the lapse, release, or waiver of the power, 93
the holder is treated as the settlor of the trust only to 94
the extent the value of the property affected by the lapse, 95
release, or waiver exceeds the greater of the amount 96
specified in Sections 2041(b)(2), 2514(e) or 2503(b) of the 97
Internal Revenue Code. 98
7. For all purposes of sections 456.5-501 to 456.5- 99
508, the settlor of any of the following trusts, known as 100
the "first trust" in this subsection, shall not be treated 101
as the settlor of any other trust, known as the "second 102
trust" in this subsection, that is created pursuant to the 103
exercise of a power of appointment over the first trust if 104
the settlor is a beneficiary of the second trust: 105
(1) An irrevocable inter vivos trust for the benefit 106
of the settlor's spouse that qualifies for the marital 107
deduction from the federal gift tax under Section 2523(e) of 108
the Internal Revenue Code; 109
(2) An irrevocable inter vivos trust for the benefit 110
of the settlor's spouse that qualifies for the marital 111
deduction from the federal gift tax under Section 2523(f) of 112
the Internal Revenue Code; 113
(3) An irrevocable inter vivos trust for the benefit 114
of the settlor's spouse, or the settlor's spouse and other 115
beneficiaries, where the settlor's spouse is the beneficiary 116
SB 1623 20
who exercises the power of appointment to create the second 117
trust; and 118
(4) An irrevocable inter vivos trust where any 119
beneficiary exercises a general power of appointment to 120
create the second trust. 121
8. This section shall not apply to a spendthrift trust 122
described, defined, or established in section 456.014. 123
9. An action by a creditor against a transfer to a 124
Missouri qualified self-settled trust with a spendthrift 125
provision shall be brought within two years from the date 126
the transfer is made or within six months from the date the 127
creditor discovers or reasonably should have discovered the 128
transfer, whichever is later. 129
456.8-808. 1. [While a trust is revocable, the 1
trustee may follow a direction of the settlor that is 2
contrary to the terms of the trust.] As used in this 3
section, the following terms mean: 4
(1) "Custodial account", an account, established by a 5
party with a bank as defined in 26 U.S.C. Section 408(n) or 6
with another person approved by the Internal Revenue Service 7
as satisfying the requirements to be a nonbank trustee or a 8
nonbank passive trustee set forth in regulations promulgated 9
by the United States Department of the Treasury under 26 10
U.S.C. Section 408, that is governed by an instrument 11
concerning the establishment or maintenance, or both, of an 12
individual retirement account, qualified retirement plan, 13
Archer medical savings account, health savings account, 14
Coverdell education savings account, or any similar 15
retirement or savings vehicle permitted under the Internal 16
Revenue Code of 1986, as amended; 17
(2) "Custodial account owner", any party who: 18
(a) Establishes a custodial account; 19
SB 1623 21
(b) Has the power to designate the beneficiaries or 20
appoint the custodian of the custodial account; or 21
(c) Is the party who possesses the power to direct the 22
investment, disposition, or retention of any assets in the 23
custodial account or name an authorized designee to affect 24
the same; 25
(3) "Distribution trust advisor", a fiduciary, given 26
authority by the instrument to exercise all or any portions 27
of the powers and discretions set forth in subsection 16 of 28
this section; 29
(4) "Excluded fiduciary", any fiduciary excluded from 30
exercising certain powers under the instrument, which powers 31
may be exercised by the grantor, custodial account owner, 32
trust advisor, trust protector, trust committee, or other 33
persons designated in the instrument; 34
(5) "Family advisor", any person: 35
(a) Whose appointment is provided for in the governing 36
instrument or by court order; 37
(b) Who is authorized to consult with or advise a 38
fiduciary regarding fiduciary or nonfiduciary matters and 39
actions; and 40
(c) Who may also be authorized by the governing 41
instrument or court order to otherwise act in a nonfiduciary 42
capacity; 43
(6) "Fiduciary", a trustee or custodian under any 44
instrument, an executor, administrator, or personal 45
representative of a decedent's estate, or any other party, 46
including a trust advisor, a trust protector, or a trust 47
committee, who is acting in a fiduciary capacity for any 48
person, trust, or estate; 49
(7) "Investment trust advisor", a fiduciary, given 50
authority by the instrument to exercise all or any portions 51
SB 1623 22
of the powers and discretions set forth in subsection 15 of 52
this section; 53
(8) "Tax trust advisor", a fiduciary, given authority 54
by the instrument to exercise any tax power, including all 55
or any powers and discretions set forth in subsection 18 of 56
this section; 57
(9) "Trust advisor", an investment trust advisor, a 58
distribution trust advisor, a tax trust advisor, or, in the 59
case of a custodial account, a custodial account owner or 60
the owner's designee; 61
(10) "Trust protector", any person whose appointment 62
as protector is provided for in the instrument. Such person 63
may not be considered to be acting in a fiduciary capacity 64
except to the extent the governing instrument provides 65
otherwise. However, a protector shall be considered acting 66
in a fiduciary capacity to the extent that the person 67
exercises the authority of an investment trust advisor, a 68
distribution trust advisor, or a tax trust advisor. 69
2. A trust instrument may provide for one or more 70
persons, not then serving as a trustee and not the settlor 71
or a beneficiary, to be given any powers, rights, 72
privileges, benefits, immunities, or authorities over the 73
trust that is available to a trustee under the laws of this 74
state or under the trust instrument as expressly granted in 75
the trust instrument. Any such person may be identified and 76
appointed as a trust protector or [similar term] trust 77
advisor. Whenever a trust instrument names, appoints, 78
authorizes, or otherwise designates a trust protector, the 79
trust shall be deemed a directed trust. 80
3. A trust protector appointed in the trust instrument 81
shall have only the powers granted to the trust protector by 82
the express terms of the trust instrument, and a trust 83
SB 1623 23
protector is only authorized to act within the scope of the 84
authority expressly granted in the trust instrument. 85
Without limiting the authority of the settlor to grant 86
powers to a trust protector, the express powers that may be 87
granted and exercised, in the best interests of the trust, 88
in the sole and absolute discretion of the trust protector, 89
and are binding on all other persons include[, but are not 90
limited to,] the following: 91
(1) Remove and appoint a trustee [or a trust protector 92
or name], a fiduciary provided for in the trust instrument, 93
trust advisor, investment committee member, or distribution 94
committee member or appoint a successor [trustee or] trust 95
protector; 96
(2) Modify or amend the trust instrument to: 97
(a) Achieve favorable tax status or respond to changes 98
in the Internal Revenue Code or state law, or the rulings 99
and regulations under such code or law; 100
(b) Take advantage of laws governing restraints on 101
alienation, distribution of trust property, or the 102
administration of the trust; 103
(c) Change the terms of any power of appointment 104
granted by the trust, except a modification or amendment may 105
not grant a beneficial interest to any individual or class 106
of individuals not specifically provided for under the trust 107
instrument; 108
(d) Reflect legal changes that affect trust 109
administration; 110
[(c)] (e) Correct errors or ambiguities that might 111
otherwise require court construction; or 112
[(d)] (f) Correct a drafting error that defeats a 113
grantor's intent; 114
SB 1623 24
(3) Increase[,] or decrease[, modify, or restrict] the 115
interests of the beneficiary or beneficiaries of the trust; 116
(4) Terminate the trust [in favor of the beneficiary 117
or beneficiaries of the trust]; 118
(5) Change the applicable law governing the trust and 119
the trust situs; [or] 120
(6) [Such] Veto or direct trust distributions; 121
(7) Interpret terms of the trust instrument at the 122
request of the trustee; 123
(8) Advise the trustee on matters concerning a 124
beneficiary; or 125
(9) Add to the trust: 126
(a) An individual beneficiary or beneficiaries from a 127
class of individuals identified in the governing instrument; 128
or 129
(b) A charitable beneficiary or beneficiaries from a 130
class of charities identified in the trust instrument; 131
(10) Provide other powers and discretions as are 132
expressly granted to the trust protector in the trust 133
instrument. 134
Any of the powers enumerated in this subsection, as they 135
exist at the time of the signing of a will or trust 136
instrument, may be, by appropriate reference made thereto, 137
incorporated in whole or in part in such will or trust 138
instrument, by a clearly expressed intention of a testator 139
of a will or trustee of a trust instrument. 140
4. [Notwithstanding any provision in the trust 141
instrument to the contrary, a trust protector shall have no 142
power to modify a trust to: 143
(1) Remove a requirement from a trust created to meet 144
the requirements of 42 U.S.C. Section 1396p(d)(4) to pay 145
SB 1623 25
back a governmental entity for benefits provided to the 146
permissible beneficiary of the trust at the death of that 147
beneficiary; or 148
(2) Reduce or eliminate an income interest of the 149
income beneficiary of any of the following types of trusts: 150
(a) A trust for which a marital deduction has been 151
taken for federal tax purposes under Section 2056 or 2523 of 152
the Internal Revenue Code or for state tax purposes under 153
any comparable provision of applicable state law, during the 154
life of the settlor's spouse; 155
(b) A charitable remainder trust under Section 664 of 156
the Internal Revenue Code, during the life of the 157
noncharitable beneficiary; 158
(c) A grantor retained annuity trust under Section 159
2702 of the Internal Revenue Code, during any period in 160
which the settlor is a beneficiary; or 161
(d) A trust for which an election as a qualified Sub- 162
Chapter S Trust under Section 1361(d) of the Internal 163
Revenue Code is currently in place. 164
5. Except to the extent otherwise provided in a trust 165
instrument specifically referring to this subsection, the 166
trust protector shall not exercise a power in a way that 167
would result in a taxable gift for federal gift tax purposes 168
or cause the inclusion of any assets of the trust in the 169
trust protector's gross estate for federal estate tax 170
purposes. 171
6. Except to the extent otherwise provided in the 172
trust instrument and in subsection 7 of this section, and 173
notwithstanding any provision of sections 456.1-101 to 174
456.11-1106 to the contrary: 175
(1) A trust protector shall act in a fiduciary 176
capacity in carrying out the powers granted to the trust 177
SB 1623 26
protector in the trust instrument, and shall have such 178
duties to the beneficiaries, the settlor, or the trust as 179
set forth in the trust instrument, provided that the trust 180
instrument may provide that the trust protector shall act in 181
a nonfiduciary capacity. A trust protector is not a 182
trustee, and is not liable or accountable as a trustee when 183
performing or declining to perform the express powers given 184
to the trust protector in the trust instrument. A trust 185
protector is not liable for the acts or omissions of any 186
fiduciary or beneficiary under the trust instrument; 187
(2) A trust protector is exonerated from any and all 188
liability for the trust protector's acts or omissions, or 189
arising from any exercise or nonexercise of the powers 190
expressly conferred on the trust protector in the trust 191
instrument, unless it is established by a preponderance of 192
the evidence that the acts or omissions of the trust 193
protector were done or omitted in breach of the trust 194
protector's duty, in bad faith or with reckless indifference; 195
(3) A trust protector is authorized to exercise the 196
express powers granted in the trust instrument at any time 197
and from time to time after the trust protector acquires 198
knowledge of their appointment as trust protector and of the 199
powers granted. The trust protector may take any action, 200
judicial or otherwise, necessary to carry out the duties 201
given to the trust protector in the trust instrument; 202
(4) A trust protector is entitled to receive, from the 203
assets of the trust for which the trust protector is acting, 204
reasonable compensation, and reimbursement of the reasonable 205
costs and expenses incurred, in determining whether to carry 206
out, and in carrying out, the express powers given to the 207
trust protector in the trust instrument; 208
SB 1623 27
(5) A trust protector is entitled to receive, from the 209
assets of the trust for which the trust protector is acting, 210
reimbursement of the reasonable costs and expenses, 211
including attorney's fees, of defending any claim made 212
against the trust protector arising from the acts or 213
omissions of the trust protector acting in that capacity 214
unless it is established by clear and convincing evidence 215
that the trust protector was acting in bad faith or with 216
reckless indifference; and 217
(6) The express powers granted in the trust instrument 218
shall not be exercised by the trust protector for the trust 219
protector's own personal benefit. 220
7. If a trust protector is granted a power in the 221
trust instrument to direct, consent to, or disapprove a 222
trustee's actual or proposed investment decision, 223
distribution decision, or other decision of the trustee 224
required to be performed under applicable trust law in 225
carrying out the duties of the trustee in administering the 226
trust, then only with respect to such power, excluding the 227
powers identified in subsection 3 of this section,] The 228
trust protector or trust advisor shall have [the same duties 229
and liabilities] no greater liability to any person than as 230
if serving as a trustee holding or benefitting from the 231
rights, powers, privileges, benefits, immunities, or 232
authority provided or allowed under the trust instrument to 233
such trust advisor or trust protector unless the trust 234
instrument expressly provides otherwise. [In carrying out 235
any written directions given to the trustee by the trust 236
protector concerning actual or proposed investment 237
decisions, the trustee shall not be subject to the 238
provisions of sections 469.900 to 469.913. For purposes of 239
this subsection, "investment decisions" means, with respect 240
SB 1623 28
to any investment, decisions to retain, purchase, sell, 241
exchange, tender, or otherwise engage in transactions 242
affecting the ownership of investments or rights therein 243
and, with respect to nonpublicly traded investments, the 244
valuation thereof. 245
8. Any trustee of a directed trust shall not be 246
accountable under the law or equity for any act or omission 247
of a trust protector and shall stand absolved from liability 248
for executing the decisions or instructions from a trust 249
protector or for monitoring the actions or inactions of a 250
trust protector. A trustee shall take reasonable steps to 251
facilitate the activity of a trust protector in a directed 252
trust. A trustee shall carry out the written directions 253
given to the trustee by a trust protector acting within the 254
scope of the powers expressly granted to the trust protector 255
in the trust instrument. Except as otherwise provided in 256
the trust instrument, the trustee shall not be liable for 257
any loss resulting directly or indirectly from any act taken 258
or omitted as a result of the written direction of the trust 259
protector or the failure of the trust protector to provide 260
consent. Except as otherwise provided in the trust 261
instrument, the trustee shall have no duty to monitor the 262
conduct of the trust protector, provide advice to or consult 263
with the trust protector, or communicate with or warn or 264
apprise any beneficiary concerning instances in which the 265
trustee would or might have exercised the trustee's own 266
discretion in a manner different from the manner directed by 267
the trust protector. Except as otherwise provided in the 268
trust instrument, any actions taken by the trustee at the 269
trust protector's direction shall be deemed to be 270
administrative actions taken by the trustee solely to allow 271
the trustee to carry out the instructions of the trust 272
SB 1623 29
protector and shall not be deemed to constitute an act by 273
the trustee to monitor the trust protector or otherwise 274
participate in actions within the scope of the trust 275
protector's authority. Whenever a directed trust reserves 276
to a person or vests in an advisory or investment committee 277
authority to direct the making or retention of any 278
investment, to the exclusion of the trustee or trustees, the 279
excluded trustee or trustees shall not be liable, 280
individually or as a trustee, for any loss resulting from 281
the making or retention of any investment pursuant to such 282
direction. 283
9. Except to the extent otherwise expressly provided 284
in the trust instrument, the trust protector shall be 285
entitled to receive information regarding the administration 286
of the trust as follows: 287
(1) Upon the request of the trust protector, unless 288
unreasonable under the circumstances, the trustee shall 289
promptly provide to the trust protector any and all 290
information related to the trust that may relate to the 291
exercise or nonexercise of a power expressly granted to the 292
trust protector in the trust instrument. The trustee has no 293
obligation to provide any information to the trust protector 294
except to the extent a trust protector requests information 295
under this section; 296
(2) The request of the trust protector for information 297
under this section shall be with respect to a single trust 298
that is sufficiently identified to enable the trustee to 299
locate the records of the trust; and 300
(3) If the trustee is bound by any confidentiality 301
restrictions with respect to an asset of a trust, a trust 302
protector who requests information under this section about 303
such asset shall agree to be bound by the confidentiality 304
SB 1623 30
restrictions that bind the trustee before receiving such 305
information from the trustee. 306
10. A trust protector may resign by giving thirty 307
days' written notice to the trustee and any successor trust 308
protector. A successor trust protector, if any, shall have 309
all the powers expressly granted in the trust instrument to 310
the resigning trust protector unless such powers are 311
expressly modified for the successor trust protector. 312
11.] 5. A trust protector or trust advisor, by 313
accepting appointment to serve as a trust protector or trust 314
advisor, of a trust having its principal place of 315
administration in this state submits personally to the 316
jurisdiction of the courts of this state during any period 317
that the principal place of administration of the trust is 318
located in this state and the trust protector is serving in 319
such capacity, regardless of whether the investment advisory 320
agreements or other related agreements provide otherwise. 321
The trust instrument may also provide that a trust protector 322
or trust advisor is subject to the personal jurisdiction of 323
the courts of this state as a condition of appointment. The 324
trust protector or trust advisor may be made a party to any 325
action or proceeding if issues relate to a decision or 326
action of the trust protector or trust advisor. 327
6. Except as otherwise provided in the trust 328
instrument, an excluded fiduciary shall not be liable, 329
either individually or as a fiduciary, for any loss 330
resulting from: 331
(1) Any act taken or omitted as a result of the 332
written direction of the trust protector or trust advisor 333
appointed under the instrument, including any loss from the 334
trust advisor breaching fiduciary responsibilities or 335
acting beyond the trust advisor's scope of authority; 336
SB 1623 31
(2) A failure to take any action proposed by an 337
excluded fiduciary, which requires prior authorization of 338
the trust advisor, if that excluded fiduciary timely sought 339
but failed to obtain the authorization; 340
(3) Any action or inaction, except for gross 341
negligence or willful misconduct, when an excluded fiduciary 342
is required, pursuant to the trust instrument or any other 343
reason, to assume the role of trust protector or trust 344
advisor; 345
(4) Reliance upon any trust advisor for valuation of 346
trust assets; 347
(5) Any tax filing made or tax position taken based on 348
the recommendations or instructions received from the tax 349
trust advisor or from a tax preparer or professional used by 350
the excluded fiduciary at the direction of the grantor, the 351
tax trust advisor, or another trust fiduciary. 352
7. Any excluded fiduciary shall be relieved from any: 353
(1) Obligation to: 354
(a) Independently value trust assets; 355
(b) Review or evaluate any direction from a 356
distribution trust advisor; 357
(c) Perform investment or suitability reviews, 358
inquiries, or investigations; or 359
(d) Make recommendations or evaluations with respect 360
to any investments to the extent the trust advisor had 361
authority to direct the acquisition, disposition, or 362
retention of the investment; and 363
(2) Duty to communicate with or warn or apprise any 364
beneficiary or third-party concerning instances in which the 365
excluded fiduciary would or might have exercised the 366
excluded fiduciary's own discretion in a manner different 367
SB 1623 32
from the manner directed by the trust advisor or trust 368
protector. 369
8. (1) If the excluded fiduciary offers such 370
communication to the trust advisor, trust protector, or any 371
investment person selected by the investment trust advisor, 372
such action does not constitute an undertaking by the 373
excluded fiduciary to monitor or otherwise participate in 374
actions within the scope of the advisor's authority or to 375
constitute any duty to do so. 376
(2) Absent contrary provisions in the trust 377
instrument, the actions of the excluded fiduciary, including 378
any communications with the trust advisor and others and 379
carrying out, recording, and reporting actions taken at the 380
trust advisor's direction, pertaining to matters within the 381
scope of authority of the trust advisor or trust protector 382
constitute administrative actions taken by the excluded 383
fiduciary solely to allow the excluded fiduciary to perform 384
those duties assigned to the excluded fiduciary under the 385
governing instrument, and such administrative actions do not 386
constitute an undertaking by the excluded fiduciary to 387
monitor, participate, or otherwise take any fiduciary 388
responsibility for actions within the scope of authority of 389
the trust protector or trust advisor. 390
9. Nothing in subdivision (2) of subsection 6 of this 391
section imposes an obligation or liability with respect to a 392
custodian of a custodial account. 393
10. In an action against an excluded fiduciary 394
pursuant to the provisions of this section, the burden to 395
prove the matter by clear and convincing evidence is on the 396
person seeking to hold the excluded fiduciary liable. 397
SB 1623 33
11. An excluded fiduciary may continue to follow the 398
direction of the trust advisor upon the incapacity or death 399
of the grantor if the instrument so allows. 400
12. If one or more trust advisors and tax trust 401
advisors are given authority by the terms of a trust 402
instrument to direct, consent to, or disapprove a 403
fiduciary's investment, distribution, or tax decisions, or 404
proposed investment, distribution, or tax decisions, such 405
trust advisors and tax trust advisors are considered to be 406
fiduciaries when exercising such authority. 407
13. (1) For investment decisions, so long as there is 408
at least one fiduciary exercising the authority of the 409
investment trust advisor pursuant to subsection 15 of this 410
section for the investment, except in the case of gross 411
negligence or willful misconduct by the fiduciary investment 412
advisor in the selection or monitoring of the nonfiduciary 413
trust advisors, the trust instrument may provide that such 414
other trust advisors acting pursuant to this section are not 415
acting in a fiduciary capacity. 416
(2) For distribution decisions, so long as there is at 417
least one fiduciary exercising the authority of the 418
distribution trust advisor pursuant to subsection 16 of this 419
section for the distribution, except in the case of gross 420
negligence or willful misconduct by the fiduciary 421
distribution advisor in the selection or monitoring of the 422
nonfiduciary trust advisors, the trust instrument may 423
provide that the other trust advisors acting pursuant to 424
this section are not acting in a fiduciary capacity. 425
(3) For tax decisions, so long as there is at least 426
one fiduciary exercising the authority of the tax trust 427
advisor pursuant to subsection 18 of this section for the 428
tax decision, except in the case of gross negligence or 429
SB 1623 34
willful misconduct by the fiduciary tax trust advisor in the 430
selection or monitoring of the nonfiduciary tax trust 431
advisors, the trust instrument may provide that such other 432
tax trust advisors acting pursuant to this section are not 433
acting in a fiduciary capacity. 434
14. A trust instrument governed by the laws of this 435
state may provide for a person to act as an investment trust 436
advisor, a distribution trust advisor, or a tax trust 437
advisor, respectively, with regard to investment decisions, 438
distribution decisions, or tax decisions, respectively. 439
Unless otherwise provided or restricted by the terms of the 440
trust instrument, any person may simultaneously serve as a 441
trust advisor and a trust protector. 442
15. The powers and discretions of an investment trust 443
advisor shall be as provided in the trust instrument and may 444
be exercised in the best interests of the trust, in the sole 445
and absolute discretion of the investment trust advisor, and 446
are binding on any other person and any other interested 447
party, fiduciary, and excluded fiduciary. In addition to 448
the powers and discretions granted to the investment trust 449
advisor in the trust instrument, the investment trust 450
advisor may also exercise any of the following powers and 451
discretions to the extent such exercise is not prohibited 452
under the terms of the trust instrument: 453
(1) Direct the trustee with respect to the retention, 454
purchase, sale, exchange, tender, or other transaction 455
affecting the ownership thereof or rights therein of trust 456
investments. These powers include the pledge or encumbrance 457
of trust property, lending of trust assets, either secured 458
or unsecured, at terms defined by the investment trust 459
advisor to any party including beneficiaries of the trust 460
SB 1623 35
and the investment and reinvestment of principal and income 461
of the trust; 462
(2) Vote proxies for securities held in trust; 463
(3) Select one or more investment advisers, managers, 464
or counselors, including the trustee, and delegate to them 465
any of its powers; 466
(4) Direct the trustee with respect to any additional 467
powers and discretions over investment and management of 468
trust assets provided in the trust instrument; 469
(5) Direct the trustee as to the value of nonpublicly 470
traded trust investments; and 471
(6) Direct the trustee as to any investment or 472
management power referenced in this chapter. 473
16. The powers and discretions of a distribution trust 474
advisor over any discretionary distributions of income or 475
principal, including distributions pursuant to an 476
ascertainable standard or other criteria and appointments 477
pursuant to section 456.4-419, shall be provided in the 478
trust instrument and may be exercised or not exercised, in 479
the best interests of the trust, in the sole and absolute 480
discretion of the distribution trust advisor, and are 481
binding on any other person and any other interested party, 482
fiduciary, and excluded fiduciary. Unless the terms of the 483
trust instrument provide otherwise, then, in addition to the 484
powers and discretions granted to the distribution trust 485
advisor in the trust instrument, the distribution trust 486
advisor shall direct the trustee with regard to all 487
discretionary distributions to beneficiaries, may direct 488
appointments pursuant to section 456.4-419. 489
17. (1) The powers and discretions of a family 490
advisor are as provided in the trust instrument or by court 491
order and may be exercised, in the best interests of the 492
SB 1623 36
trust, and in the sole and absolute discretion of the family 493
advisor. The powers and discretions shall only include the 494
following: 495
(a) Remove and appoint a trustee, a fiduciary provided 496
for in the governing trust instrument, trust advisor, 497
investment committee member, or distribution committee 498
member; 499
(b) Appoint a trust protector, or a family advisor; 500
(c) Advise the trustee on matters concerning any 501
beneficiary; receive trust accountings, investment reports, 502
and other information from the trustee or to which a 503
beneficiary is entitled; attend meetings whether in person 504
or by any other means with the trustee, investment trust 505
advisors, distribution trust advisors, or other advisors 506
whether in person or by any means, electronic or otherwise; 507
and to consult with a fiduciary regarding both fiduciary and 508
nonfiduciary matters or actions, all without any power or 509
discretion to take any action as a fiduciary; or 510
(d) Provide direction regarding notification of 511
qualified beneficiaries under this chapter. 512
(2) A family advisor is not required to exercise any 513
powers or discretions under any circumstances. Every action 514
or inaction by a family advisor is a nonfiduciary action or 515
inaction and a family advisor is absolutely excluded from 516
liability to any other person for an action or inaction as a 517
family advisor. A court may review a family advisor's 518
exercise of the powers described in paragraphs (a), (b), and 519
(d) of subdivision (1) of this subsection only if the family 520
advisor acts dishonestly or with an improper motive but may 521
not review a family advisor's failure to exercise any 522
powers. A reasonableness standard may not be applied to any 523
action or inaction of a family advisor. Except as provided 524
SB 1623 37
in this subdivision, a court has no jurisdiction to review a 525
family advisor's action or inaction. 526
(3) A family advisor is entitled to compensation as 527
provided in the trust instrument. If the trust instrument 528
does not provide for or establish compensation, a family 529
advisor is entitled to reasonable compensation for the 530
exercise of the powers and discretions granted to the family 531
advisor pursuant to this chapter. 532
18. The powers and discretions of a tax trust advisor 533
shall be as provided in the trust instrument and may be 534
exercised, in the best interests of the trust, in the sole 535
and absolute discretion of the tax trust advisor, and are 536
binding on any other person and any other interested party, 537
fiduciary, and excluded fiduciary. In addition to the 538
powers and discretions granted to the tax trust advisor in 539
the trust instrument, the tax trust advisor may also 540
exercise any of the following powers and discretions to the 541
extent the exercise is not prohibited under the terms of 542
such instrument: 543
(1) Direct the trustee with respect to tax matters 544
related to the trust, including tax elections, tax returns 545
to be filed, positions to be taken on tax returns, tax 546
payments to be made, and the anticipated tax impact to the 547
trust or a beneficiary of any transaction involving the 548
trust, including: 549
(a) The retention, purchase, sale, exchange, or tender 550
of any asset of the trust; 551
(b) Any contribution to or distribution from: 552
a. The trust; or 553
b. An entity owned by the trust; 554
(2) Direct the trustee: 555
SB 1623 38
(a) To rely on any tax information received from the 556
settlor, the settlor's agents, a tax trust advisor, or other 557
individuals regarding matters that have tax implications to 558
the trust or trust beneficiaries; 559
(b) To sign and file tax returns; 560
(c) With respect to any additional powers and 561
discretions over tax-related matters provided in the 562
governing instrument; or 563
(d) As to any tax-related powers referenced in this 564
chapter; and 565
(3) Select one or more tax advisors to prepare tax 566
returns or other related filings. 567
