Missouri Revised Statutes
Chapter 469
Disclaimers of Property
←469.409
Section 469.411.1
469.413→
August 28, 2015
Determination of unitrust amount--definitions--exclusions to average net fair market value of assets--applicability of section to certain trusts--net income of trust to be unitrust amount, when.
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,
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.
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 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 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.
(L. 2001 H.B. 241, A.L. 2002 H.B. 1151 merged with S.B. 742, A.L. 2004
H.B. 1511, A.L. 2009 H.B. 239, A.L. 2011 S.B. 59)
2009
2004
2002
2001
2001
2009
469.411. 1. If the provisions of this section apply to a trust, the
unitrust amount shall be determined as follows:
(1) For the first three accounting periods of the trust, the unitrust
amount for a current valuation year of the trust shall be a percentage
between three and five percent that is specified by the terms of the
governing instrument or by the election made in accordance with subdivision
(2) of subsection 5 of this section, of the net fair market values of the
assets held in the trust on the first business day of the current valuation
year;
(2) Beginning with the fourth accounting period of the trust, the
unitrust amount for a current valuation year of the trust shall be a
percentage between three and five percent that is specified by the terms of
the governing instrument or by the election made in accordance with
subdivision (2) of subsection 5 of this section, of the average of the net
fair market values of the assets held in the trust on the first business day
of the current valuation year and the net fair market values of the assets
held in the trust on the first business day of each prior valuation year,
regardless of whether this section applied to the ascertainment of net income
for all valuation years;
(3) The unitrust amount for the current valuation year computed pursuant
to subdivision (1) or (2) of this subsection 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,
disbursements and taxes, from the trust within a current valuation 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 valuation year;
(4) For purposes of subdivision (2) of this subsection, the net fair
market values of the assets held in the trust on the first business day of a
prior valuation year 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 valuation year pursuant to subdivision (3) of this subsection, as if
the distribution, payment or receipt had occurred on the first day of the
prior valuation year;
(5) In the case of a short accounting period, the trustee shall prorate
the unitrust amount on a daily basis;
(6) In the case where the net fair market value of an asset held in the
trust has been incorrectly determined either in a current valuation year or
in a prior valuation year, 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) "Current valuation year", the accounting period of the trust for
which the unitrust amount is being determined;
(2) "Prior valuation year", each of the two accounting periods of the
trust immediately preceding the current valuation year.
3. In determining the sum of the net fair market values of the assets
held in the trust for purposes of subdivisions (1) and (2) of subsection 1 of
this section, 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 net fair market value of each asset held in the
trust pursuant to subdivisions (1) and (2) of 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 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;
(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;
(4) If this section is made applicable under this subdivision to an
institutional endowment fund, as defined in section 402.130, the restrictions
contained in section 402.134 shall not apply to the extent payment of a
unitrust amount would otherwise be prohibited.
2004
469.411. 1. If the provisions of this section apply to a trust, the
unitrust amount shall be determined as follows:
(1) For the first three accounting periods of the trust, the unitrust
amount for a current valuation year of the trust shall be a percentage
between three and five percent that is specified by the terms of the
governing instrument or by the election made in accordance with subdivision
(2) of subsection 5 of this section, of the net fair market values of the
assets held in the trust on the first business day of the current valuation
year;
(2) Beginning with the fourth accounting period of the trust, the
unitrust amount for a current valuation year of the trust shall be a
percentage between three and five percent that is specified by the terms of
the governing instrument or by the election made in accordance with
subdivision (2) of subsection 5 of this section, of the average of the net
fair market values of the assets held in the trust on the first business
day of the current valuation year and the net fair market values of the
assets held in the trust on the first business day of each prior valuation
year, regardless of whether this section applied to the ascertainment of
net income for all valuation years;
(3) The unitrust amount for the current valuation year computed
pursuant to subdivision (1) or (2) of this subsection 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, disbursements and taxes, from the trust within a
current valuation 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 valuation year;
(4) For purposes of subdivision (2) of this subsection, the net fair
market values of the assets held in the trust on the first business day of
a prior valuation year 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 valuation year pursuant to subdivision (3) of this
subsection, as if the distribution, payment or receipt had occurred on the
first day of the prior valuation year;
(5) In the case of a short accounting period, the trustee shall
prorate the unitrust amount on a daily basis;
(6) In the case where the net fair market value of an asset held in
the trust has been incorrectly determined either in a current valuation
year or in a prior valuation year, 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) "Current valuation year", the accounting period of the trust for
which the unitrust amount is being determined;
(2) "Prior valuation year", each of the two accounting periods of the
trust immediately preceding the current valuation year.
3. In determining the sum of the net fair market values of the assets
held in the trust for purposes of subdivisions (1) and (2) of subsection 1
of this section, 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 net fair market value of each asset held in the
trust pursuant to subdivisions (1) and (2) of 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 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;
(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;
(4) If this section is made applicable under this subdivision to an
institutional endowment fund, as defined in section 402.010, RSMo, the
restrictions contained in section 402.015, RSMo, shall not apply to the
extent payment of a unitrust amount would otherwise be prohibited.
2002
469.411. 1. If the provisions of this section apply to a trust, the
unitrust amount shall be determined as follows:
(1) For the first three accounting periods of the trust, the unitrust
amount for a current valuation year of the trust shall be three percent, or
any higher 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, of the net fair market values of the assets held in the trust
on the first business day of the current valuation year;
(2) Beginning with the fourth accounting period of the trust, the
unitrust amount for a current valuation year of the trust shall be three
percent, or any higher 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, of the average of the net fair market values
of the assets held in the trust on the first business day of the current
valuation year and the net fair market values of the assets held in the
trust on the first business day of each prior valuation year;
(3) The unitrust amount for the current valuation year computed
pursuant to subdivision (1) or (2) of this subsection 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, disbursements and taxes, from the trust within a
current valuation 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 valuation year;
(4) For purposes of subdivision (2) of this subsection, the net fair
market values of the assets held in the trust on the first business day of
a prior valuation year 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 valuation year pursuant to subdivision (3) of this
subsection, as if the distribution, payment or receipt had occurred on the
first day of the prior valuation year;
(5) In the case of a short accounting period, the trustee shall
prorate the unitrust amount on a daily basis;
(6) In the case where the net fair market value of an asset held in
the trust has been incorrectly determined either in a current valuation
year or in a prior valuation year, 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) "Current valuation year", the accounting period of the trust for
which the unitrust amount is being determined;
(2) "Prior valuation year", each of the two accounting periods of the
trust immediately preceding the current valuation year.
3. In determining the sum of the net fair market values of the assets
held in the trust for purposes of subdivisions (1) and (2) of subsection 1
of this section, 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 net fair market value of each asset held in the
trust pursuant to subdivisions (1) and (2) of 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 trust clearly manifest an intent that this section apply;
(2) Any trust created under an instrument that became irrevocable on
or before August 28, 2001, if the trustee, in the trustee's discretion,
elects to have this section apply two years from August 28, 2001, unless
the instrument creating the trust provides otherwise. 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. Delivery of the notice to
a person with respect to whom, pursuant to subdivision (2) of section
472.300, RSMo, an order would bind a beneficiary of the trust is delivery
of notice to that beneficiary for all purposes of this subsection. 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
three percent or greater, 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;
(3) No action of any kind based on an election made or not 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
August 28, 2001.
2001
469.411. 1. If the provisions of this section apply to a trust, the
unitrust amount shall be determined as follows:
(1) For the first three accounting periods of the trust, the unitrust
amount for a current valuation year of the trust shall be three percent, or
any higher 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, of the net fair market values of the assets held in the trust
on the first business day of the current valuation year;
(2) Beginning with the fourth accounting period of the trust, the
unitrust amount for a current valuation year of the trust shall be three
percent, or any higher 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, of the average of the net fair market values
of the assets held in the trust on the first business day of the current
valuation year and the net fair market values of the assets held in the
trust on the first business day of each prior valuation year;
(3) The unitrust amount for the current valuation year computed
pursuant to subdivision (1) or (2) of this subsection 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, disbursements and taxes, from the trust within a
current valuation 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 valuation year;
(4) For purposes of subdivision (2) of this subsection, the net fair
market values of the assets held in the trust on the first business day of
a prior valuation year 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 valuation year pursuant to subdivision (3) of this
subsection, as if the distribution, payment or receipt had occurred on the
first day of the prior valuation year;
(5) In the case of a short accounting period, the trustee shall
prorate the unitrust amount on a daily basis;
(6) In the case where the net fair market value of an asset held in
the trust has been incorrectly determined either in a current valuation
year or in a prior valuation year, 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) "Current valuation year", the accounting period of the trust for
which the unitrust amount is being determined;
(2) "Prior valuation year", each of the two accounting periods of the
trust immediately preceding the current valuation year.
3. In determining the sum of the net fair market values of the assets
held in the trust for purposes of subdivisions (1) and (2) of subsection 1
of this section, 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 net fair market value of each asset held in the
trust pursuant to subdivisions (1) and (2) of 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 trust clearly manifest an intent that this section apply;
(2) Any trust created under an instrument that became irrevocable on
or before August 28, 2001, if the trustee, in the trustee's discretion,
elects to have this section apply two years from August 28, 2001, unless
the instrument creating the trust provides otherwise. 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. Delivery of the notice to
a person with respect to whom, pursuant to subdivision (2) of section
472.300, RSMo, an order would bind a beneficiary of the trust is delivery
of notice to that beneficiary for all purposes of this subsection. 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
three percent or greater, 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 469.409;
(3) No action of any kind based on an election made or not 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
August 28, 2001.
2001
469.411. 1. If the provisions of this section apply to a trust, the
unitrust amount shall be determined as follows:
(1) For the first three accounting periods of the trust, the unitrust
amount for a current valuation year of the trust shall be three percent, or
any higher 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, of the net fair market values of the assets held in the trust
on the first business day of the current valuation year;
(2) Beginning with the fourth accounting period of the trust, the
unitrust amount for a current valuation year of the trust shall be three
percent, or any higher 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, of the average of the net fair market values
of the assets held in the trust on the first business day of the current
valuation year and the net fair market values of the assets held in the
trust on the first business day of each prior valuation year;
(3) The unitrust amount for the current valuation year computed
pursuant to subdivision (1) or (2) of this subsection 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, disbursements and taxes, from the trust within a
current valuation 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 valuation year;
(4) For purposes of subdivision (2) of this subsection, the net fair
market values of the assets held in the trust on the first business day of
a prior valuation year 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 valuation year pursuant to subdivision (3) of this
subsection, as if the distribution, payment or receipt had occurred on the
first day of the prior valuation year;
(5) In the case of a short accounting period, the trustee shall
prorate the unitrust amount on a daily basis;
(6) In the case where the net fair market value of an asset held in
the trust has been incorrectly determined either in a current valuation
year or in a prior valuation year, 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) "Current valuation year", the accounting period of the trust for
which the unitrust amount is being determined;
(2) "Prior valuation year", each of the two accounting periods of the
trust immediately preceding the current valuation year.
3. In determining the sum of the net fair market values of the assets
held in the trust for purposes of subdivisions (1) and (2) of subsection 1
of this section, 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 net fair market value of each asset held in the
trust pursuant to subdivisions (1) and (2) of 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 trust clearly manifest an intent that this section apply;
(2) Any trust created under an instrument that became irrevocable on
or before August 28, 2001, if the trustee, in the trustee's discretion,
elects to have this section apply two years from August 28, 2001, unless
the instrument creating the trust provides otherwise. 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. Delivery of the notice to
a person with respect to whom, pursuant to subdivision (2) of section
472.300, RSMo, an order would bind a beneficiary of the trust is delivery
of notice to that beneficiary for all purposes of this subsection. 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
three percent or greater, 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 469.409;
(3) No action of any kind based on an election made or not 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
August 28, 2001.
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