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Subchapter 001: GENERAL PROVISIONS
§ 3321. Short title
This subchapter may be cited as the Uniform Principal and Income Act. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3322. Definitions
As used in this chapter:
(1) “Accounting period” means a calendar year unless another 12-month period is selected
by a fiduciary. The term includes a portion of a calendar year or other 12-month period
that begins when an income interest begins or ends when an income interest ends.
(2) “Beneficiary” includes, in the case of a decedent’s estate, an heir, legatee, and
devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
(3) “Fiduciary” means a personal representative or a trustee. The term includes an executor,
administrator, successor, personal representative, special administrator, and a person
performing substantially the same function.
(4) “Income” means money or property that a fiduciary receives as current return from
a principal asset. The term includes a portion of receipts from a sale, exchange,
or liquidation of a principal asset, to the extent provided in subchapter 4 of this
chapter.
(5) “Income beneficiary” means a person to whom net income of a trust is or may be payable.
(6) “Income interest” means the right of an income beneficiary to receive all or part
of net income, whether the terms of the trust require it to be distributed or authorize
it to be distributed in the trustee’s discretion.
(7) “Mandatory income interest” means the right of an income beneficiary to receive net
income that the terms of the trust require the fiduciary to distribute.
(8) “Net income” means the total receipts allocated to income during an accounting period
minus the disbursements made from income during the period, plus or minus transfers
under this chapter to or from income during the period.
(9) “Person” means an individual; corporation; business trust; estate; trust; partnership;
limited liability company; association; joint venture; government; governmental subdivision,
agency, or instrumentality; public corporation; or any other legal or commercial entity.
(10) “Principal” means property held in trust for distribution to a remainder beneficiary
when the trust terminates.
(11) “Remainder beneficiary” means a person entitled to receive principal when an income
interest ends.
(12) “Terms of a trust” means the manifestation of the intent of a settlor or decedent
with respect to the trust, expressed in a manner that admits of its proof in a judicial
proceeding, whether by written or spoken words or by conduct.
(13) “Trustee” includes an original, additional, or successor trustee, whether or not appointed
or confirmed by a court. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3323. Fiduciary duties; general principles
(a) In allocating receipts and disbursements to or between principal and income, and with
respect to any matter within the scope of subchapter 2 or 3 of this chapter, a fiduciary:
(1) shall administer a trust or estate in accordance with the terms of the trust or the
will, even if there is a different provision in this chapter;
(2) may administer a trust or estate by the exercise of a discretionary power of administration
given to the fiduciary by the terms of the trust or the will, even if the exercise
of the power produces a result different from a result required or permitted by this
chapter;
(3) shall administer a trust or estate in accordance with this chapter if the terms of
the trust or the will do not contain a different provision or do not give the fiduciary
a discretionary power of administration; and
(4) shall add a receipt or charge a disbursement to principal to the extent that the terms
of the trust and this chapter do not provide a rule for allocating the receipt or
disbursement to or between principal and income.
(b) In exercising the power to adjust under subsection 3324(a) of this title or a discretionary power of administration regarding a matter within the scope of
this chapter, whether granted by the terms of a trust, a will, or this chapter, a
fiduciary shall administer a trust or estate impartially, based on what is fair and
reasonable to all of the beneficiaries, except to the extent that the terms of the
trust or the will clearly manifest an intention that the fiduciary shall or may favor
one or more of the beneficiaries. A determination in accordance with this chapter
is presumed to be fair and reasonable to all of the beneficiaries. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3324. Trustee’s power to adjust
(a) A trustee may adjust between principal and income to the extent the trustee considers
necessary if the trustee invests and manages trust assets as a prudent investor, the
terms of the trust describe the amount that may or must be distributed to a beneficiary
by referring to the trust’s income, and the trustee determines, after applying the
rules in subsection 3323(a) of this title, that the trustee is unable to comply with subsection 3323(b) of this title.
(b) In deciding whether and to what extent to exercise the power conferred by subsection
(a) of this section, a trustee shall consider all factors relevant to the trust and
its beneficiaries, including the following factors to the extent they are relevant:
(1) the nature, purpose, and expected duration of the trust;
(2) the intent of the settler;
(3) the identity and circumstances of the beneficiaries;
(4) the needs for liquidity, regularity of income, and preservation and appreciation of
capital;
(5) the assets held in the trust; the extent to which they consist of financial assets,
interests in closely held enterprises, tangible and intangible personal property,
or real property; the extent to which an asset is used by a beneficiary; and whether
an asset was purchased by the trustee or received from the settlor;
(6) the net amount allocated to income under the other sections of this chapter and the
increase or decrease in the value of the principal assets, which the trustee may estimate
as to assets for which market values are not readily available;
(7) whether and to what extent the terms of the trust give the trustee the power to invade
principal or accumulate income or prohibit the trustee from invading principal or
accumulating income, and the extent to which the trustee has exercised a power from
time to time to invade principal or accumulate income;
(8) the actual and anticipated effect of economic conditions on principal and income and
effects of inflation and deflation; and
(9) the anticipated tax consequences of an adjustment.
(c) A trustee may not make an adjustment:
(1) that diminishes the income interest in a trust that requires all of the income to
be paid at least annually to a spouse and for which an estate tax or gift tax marital
deduction would be allowed, in whole or in part, if the trustee did not have the power
to make the adjustment;
(2) that reduces the actuarial value of the income interest in a trust to which a person
transfers property with the intent to qualify for a gift tax exclusion;
(3) that changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction
of the value of the trust assets;
(4) from any amount that is permanently set aside for charitable purposes under a will
or the terms of a trust unless both income and principal are so set aside;
(5) if possessing or exercising the power to make an adjustment causes an individual to
be treated as the owner of all or part of the trust for income tax purposes, and the
individual would not be treated as the owner if the trustee did not possess the power
to make an adjustment;
(6) if possessing or exercising the power to make an adjustment causes all or part of
the trust assets to be included for estate tax purposes in the estate of an individual
who has the power to remove a trustee or appoint a trustee, or both, and the assets
would not be included in the estate of the individual if the trustee did not possess
the power to make an adjustment;
(7) if the trustee is a beneficiary of the trust; or
(8) if the trustee is not a beneficiary, but the adjustment would benefit the trustee
directly or indirectly.
(d) If subdivision (c)(5), (6), (7), or (8) of this section applies to a trustee and there
is more than one trustee, a cotrustee to whom the provision does not apply may make
the adjustment unless the exercise of the power by the remaining trustee or trustees
is not permitted by the terms of the trust.
(e) A trustee may release the entire power conferred by subsection (a) of this section
or may release only the power to adjust from income to principal or the power to adjust
from principal to income if the trustee is uncertain about whether possessing or exercising
the power will cause one of the results described in subdivisions (c)(1)-(6) or (c)(8)
of this section or if the trustee determines that possessing or exercising the power
will or may deprive the trust of a tax benefit or impose a tax burden not described
in subsection (c) of this section. The release may be permanent or for a specified
period, including a period measured by the life of an individual.
(f) Terms of a trust that limit the power of a trustee to make an adjustment between principal
and income do not affect the application of this section unless it is clear from the
terms of the trust that the terms are intended to deny the trustee the power of adjustment
conferred by subsection (a) of this section. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3325. Judicial control of discretionary power
(a) The court may not order a fiduciary to change a decision to exercise or not to exercise
a discretionary power conferred by this chapter unless it determines that the decision
was an abuse of the fiduciary’s discretion. A fiduciary’s decision is not an abuse
of discretion merely because the court would have exercised the power in a different
manner or would not have exercised the power.
(b) The decisions to which subsection (a) of this section applies include:
(1) a decision under subsection 3324(a) of this title as to whether and to what extent an amount should be transferred from principal to
income or from income to principal; and
(2) a decision regarding the factors that are relevant to the trust and its beneficiaries,
the extent to which the factors are relevant, and the weight, if any, to be given
to those factors, in deciding whether and to what extent to exercise the discretionary
power conferred by subsection 3324(a) of this title.
(c) If the court determines that a fiduciary has abused the fiduciary’s discretion, the
court may place the income and remainder beneficiaries in the positions they would
have occupied if the discretion had not been abused, according to the following rules:
(1) To the extent that the abuse of discretion has resulted in no distribution to a beneficiary
or in a distribution that is too small, the court shall order the fiduciary to distribute
from the trust to the beneficiary an amount that the court determines will restore
the beneficiary, in whole or in part, to the beneficiary’s appropriate position.
(2) To the extent that the abuse of discretion has resulted in a distribution to a beneficiary
which is too large, the court shall place the beneficiaries, the trust, or both, in
whole or in part, in their appropriate positions by ordering the fiduciary to withhold
an amount from one or more future distributions to the beneficiary who received the
distribution that was too large or ordering that beneficiary to return some or all
of the distribution to the trust.
(3) To the extent that the court is unable, after applying subdivisions (1) and (2) of
this subsection, to place the beneficiaries or the trust or both in the positions
they would have occupied if the discretion had not been abused, the court may order
the fiduciary to pay an appropriate amount from its own funds to one or more of the
beneficiaries or the trust or both.
(d) Upon petition by the fiduciary, the court having jurisdiction over a trust or estate
shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary
power conferred by this chapter will result in an abuse of the fiduciary’s discretion.
If the petition describes the proposed exercise or nonexercise of the power and contains
sufficient information to inform the beneficiaries of the reasons for the proposal,
the facts upon which the fiduciary relies, and an explanation of how the income and
remainder beneficiaries will be affected by the proposed exercise or nonexercise of
the power, a beneficiary who challenges the proposed exercise or nonexercise has the
burden of establishing that it will result in an abuse of discretion. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3326. Uniformity of application and construction
In applying and construing this chapter, consideration shall be given to the need
to promote uniformity of the law with respect to its subject matter among states that
enact it. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3327. Severability clause
If any provision of this chapter or its application to any person or circumstance
is held invalid, the invalidity does not affect other provisions or applications of
this chapter which can be given effect without the invalid provision or application,
and to this end the provisions of this chapter are severable. (Added 2011, No. 114 (Adj. Sess.), § 1.)
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Subchapter 002: DECEDENT'S ESTATE OR TERMINATING INCOME INTEREST
§ 3331. Determination and distribution of net income
After a decedent dies, in the case of an estate, or after an income interest in a
trust ends, the following rules apply:
(1) A fiduciary of an estate or of a terminating income interest shall determine the amount
of net income and net principal receipts received from property specifically given
to a beneficiary under the rules in subchapters 3, 4, and 5 of this chapter which
apply to trustees and under the rules in subdivision (5) of this section. The fiduciary
shall distribute the net income and net principal receipts to the beneficiary who
is to receive the specific property.
(2) A fiduciary shall determine the remaining net income of a decedent’s estate or a terminating
income interest under the rules in subchapters 3, 4, and 5 of this chapter which apply
to trustees and by:
(A) including in net income all income from property used to discharge liabilities;
(B) paying from income or principal, in the fiduciary’s discretion, fees of attorneys,
accountants, and fiduciaries; court costs and other expenses of administration; and
interest on death taxes, but the fiduciary may pay those expenses from income of property
passing to a trust for which the fiduciary claims an estate tax marital or charitable
deduction only to the extent that the payment of those expenses from income will not
cause the reduction or loss of the deduction; and
(C) paying from principal all other disbursements made or incurred in connection with
the settlement of a decedent’s estate or the winding up of a terminating income interest,
including debts, funeral expenses, disposition of remains, family allowances, and
death taxes and related penalties that are apportioned to the estate or terminating
income interest by the will, the terms of the trust, or applicable law.
(3) Unless the will or trust instrument otherwise provides, or the court otherwise directs,
a fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright
interest from the date that is one year following the date of death of the person
whose death gives rise to the payment of the pecuniary bequest or the happening of
the contingency that causes the income interest to end, from net income determined
under subdivision (2) of this section or from principal to the extent that net income
is insufficient. However, this subdivision shall not apply to a pecuniary bequest:
(A) to or for the benefit of a decedent’s surviving spouse that is or can be qualified
for the federal estate tax marital deduction; or
(B) to or for the benefit of charitable organizations that are qualified for the federal
estate tax charitable deduction, including a charitable remainder trust.
(4) A fiduciary shall distribute the net income remaining after distributions required
by subdivision (3) of this section in the manner described in section 3332 of this title to all other beneficiaries.
(5) A fiduciary may not reduce principal or income receipts from property described in
subdivision (1) of this section because of a payment described in section 3371 or 3372 of this title to the extent that the will, the terms of the trust, or applicable law requires the
fiduciary to make the payment from assets other than the property or to the extent
that the fiduciary recovers or expects to recover the payment from a third party.
The net income and principal receipts from the property are determined by including
all of the amounts the fiduciary receives or pays with respect to the property, whether
those amounts accrued or became due before, on, or after the date of a decedent’s
death or an income interest’s terminating event, and by making a reasonable provision
for amounts that the fiduciary believes the estate or terminating income interest
may become obligated to pay after the property is distributed. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3332. Distribution to residuary and remainder beneficiaries
(a) Each beneficiary described in subdivision 3331(4) of this title is entitled to receive a portion of the net income equal to the beneficiary’s fractional
interest in undistributed principal assets, using values as of the distribution date.
If a fiduciary makes more than one distribution of assets to beneficiaries to whom
this section applies, each beneficiary, including one who does not receive part of
the distribution, is entitled, as of each distribution date, to the beneficiary’s
fractional interest in the net income the fiduciary has received after the date of
death or terminating event or earlier distribution date, but has not distributed as
of the current distribution date.
(b) In determining a beneficiary’s share of net income, the following rules apply:
(1) The beneficiary is entitled to receive a portion of the net income equal to the beneficiary’s
fractional interest in the undistributed principal assets immediately before the distribution
date, including assets that later may be sold to meet principal obligations.
(2) The beneficiary’s fractional interest in the undistributed principal assets must be
calculated without regard to property specifically given to a beneficiary and property
required to pay pecuniary amounts.
(3) The beneficiary’s fractional interest in the undistributed principal assets must be
calculated on the basis of the aggregate value of those assets as of the distribution
date without reducing the value by any unpaid principal obligation.
(4) The distribution date for purposes of this section may be the date as of which the
fiduciary calculates the value of the assets if that date is reasonably near the date
on which assets are actually distributed.
(c) If a fiduciary does not distribute all of the collected but undistributed net income
to each person as of a distribution date, the fiduciary shall maintain appropriate
records showing the interest of each beneficiary in that net income.
(d) A fiduciary may apply the rules in this section, to the extent that the fiduciary
considers it appropriate, to net gain or loss realized after the date of death or
terminating event or earlier distribution date from the disposition of a principal
asset if this section applies to the income from the asset. (Added 2011, No. 114 (Adj. Sess.), § 1.)
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Subchapter 004: ALLOCATION OF RECEIPTS DURING ADMINISTRATION OF TRUST
§ 3351. Character of receipts
(a) As used in this section, “entity” means a corporation, partnership, limited liability
company, regulated investment company, real estate investment trust, common trust
fund, or any other organization in which a trustee has an interest other than a trust
or estate to which section 3352 of this title applies, a business or activity to which section 3353 of this title applies, or an asset-backed security to which section 3365 of this title applies.
(b) Except as otherwise provided in this section, a trustee shall allocate to income money
received from an entity, including reinvested cash dividends.
(c) A trustee shall allocate the following receipts from an entity to principal:
(1) property other than money, excluding reinvested cash dividends, provided that if the
trustee may elect between money and other property as a distribution, property so
elected and distributed shall retain its character as income;
(2) money received in one distribution or a series of related distributions in exchange
for part or all of a trust’s interest in the entity;
(3) money received in total or partial liquidation of the entity;
(4) money received from an entity that is a regulated investment company or a real estate
investment trust if the money distributed is a capital gain dividend for federal income
tax purposes; and
(5) capital gains and capital gains distributions.
(d) Money is received in partial liquidation:
(1) to the extent that the entity, at or near the time of a distribution, indicates that
it is a distribution in partial liquidation; or
(2) if the total amount of money and property received in a distribution or series of
related distributions is greater than 20 percent of the entity’s gross assets, as
shown by the entity’s year-end financial statements immediately preceding the initial
receipt.
(e) Money is not received in partial liquidation, nor may it be taken into account under
subdivision (d)(2) of this section, to the extent that it does not exceed the amount
of income tax that a trustee or beneficiary must pay on taxable income of the entity
that distributes the money.
(f) A trustee may rely upon a statement made by an entity about the source or character
of a distribution if the statement is made at or near the time of distribution by
the entity’s board of directors or other person or group of persons authorized to
exercise powers to pay money or transfer property comparable to those of a corporation’s
board of directors. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3352. Distribution from trust or estate
A trustee shall allocate to income an amount received as a distribution of income
from a trust or an estate, in which the trust has an interest other than a purchased
interest, and shall allocate to principal an amount received as a distribution of
principal from such a trust or estate. If a trustee purchases an interest in a trust
that is an investment entity, or a decedent or donor transfers an interest in such
a trust to a trustee, section 3351 or 3365 of this title applies to a receipt from the trust. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3353. Business and other activities conducted by trustee
(a) If a trustee who conducts a business or other activity determines that it is in the
best interest of all the beneficiaries to account separately for the business or activity
instead of accounting for it as part of the trust’s general accounting records, the
trustee may maintain separate accounting records for its transactions, whether or
not its assets are segregated from other trust assets.
(b) A trustee who accounts separately for a business or other activity may determine the
extent to which its net cash receipts must be retained for working capital, the acquisition
or replacement of fixed assets, and other reasonably foreseeable needs of the business
or activity, and the extent to which the remaining net cash receipts are accounted
for as principal or income in the trust’s general accounting records. If a trustee
sells assets of the business or other activity, other than in the ordinary course
of the business or activity, the trustee shall account for the net amount received
as principal in the trust’s general accounting records to the extent the trustee determines
that the amount received is no longer required in the conduct of the business.
(c) Activities for which a trustee may maintain separate accounting records include:
(1) retail, manufacturing, service, and other traditional business activities;
(2) farming;
(3) raising and selling livestock and other animals;
(4) management of rental properties;
(5) extraction of minerals and other natural resources;
(6) timber operations; and
(7) activities to which section 3364 of this title applies. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3354. Principal receipts
A trustee shall allocate to principal:
(1) to the extent not allocated to income under this chapter, assets received from a transferor
during the transferor’s lifetime, a decedent’s estate, a trust with a terminating
income interest, or a payer under a contract naming the trust or its trustee as beneficiary;
(2) money or other property received from the sale, exchange, liquidation, or change in
form of a principal asset, including realized profit, subject to this chapter;
(3) amounts recovered from third parties to reimburse the trust because of disbursements
described in subdivision 3372(a)(7) of this title or for other reasons to the extent not based on the loss of income;
(4) proceeds of property taken by eminent domain, but a separate award made for the loss
of income with respect to an accounting period during which a current income beneficiary
had a mandatory income interest is income;
(5) net income received in an accounting period during which there is no beneficiary to
whom a trustee may or must distribute income; and
(6) other receipts as provided in sections 3358-3365 of this title. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3355. Rental property
To the extent that a trustee accounts for receipts from rental property pursuant to
this section, the trustee shall allocate to income an amount received as rent of real
or personal property, including an amount received for cancellation or renewal of
a lease. An amount received as a refundable deposit, including a security deposit
or a deposit applied as rent for future periods, must be added to principal and held
subject to the terms of the lease and is not available for distribution to a beneficiary
until the trustee’s contractual obligations have been satisfied with respect to that
amount. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3356. Obligation to pay money
(a) An amount received as interest, whether determined at a fixed, variable, or floating
rate, on a bond or an obligation to pay money to the fiduciary shall be allocated
to income.
(b) Except as provided in subsections (c) and (d) of this section, a fiduciary shall allocate
to principal any gain or loss realized upon the sale or maturity of any bond or obligation
to pay money to the fiduciary, regardless of how such bond or other obligation was
acquired.
(c) A fiduciary shall allocate to income the difference between inventory value or cost
and the amount realized upon sale or maturity, if greater, for bonds or other obligations
that do not bear interest, regardless of how or when such bond or other obligation
was acquired.
(d) For bonds or other obligations that are acquired by a fiduciary subsequent to the
time the principal was established and whose cost is greater than their par or maturity
value, the fiduciary shall amortize periodically out of income the premium paid and,
upon sale or maturity, shall allocate to principal any gain or loss realized thereon.
(e) This section does not apply to a bond or other obligation to which section 3359, 3360, 3361, 3362, 3364, or 3365 of this title applies. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3357. Insurance policies and similar contracts
(a) Except as otherwise provided in subsection (b) of this section, a trustee shall allocate
to principal the proceeds of a life insurance policy or other contract in which the
trust or its trustee is named as beneficiary, including a contract that insures the
trust or its trustee against loss for damage to, destruction of, or loss of title
to a trust asset. The trustee shall allocate dividends on an insurance policy to income
if the premiums on the policy are paid from income, and to principal if the premiums
are paid from principal.
(b) A trustee shall allocate to income proceeds of a contract that insures the trustee
against loss of occupancy or other use by an income beneficiary, loss of income, or,
subject to section 3353 of this title, loss of profits from a business.
(c) This section does not apply to a contract to which section 3359 of this title applies. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3358. Insubstantial allocations not required
If a trustee determines that an allocation between principal and income required by
section 3359, 3360, 3361, 3362, or 3365 of this title is insubstantial, the trustee may allocate the entire amount to principal unless
one of the circumstances described in subsection 3324(c) of this title applies to the allocation. This power may be exercised by a cotrustee in the circumstances
described in subsection 3324(d) of this title and may be released for the reasons and in the manner described in subsection 3324(e) of this title. An allocation is presumed to be insubstantial if:
(1) the amount of the allocation would increase or decrease net income in an accounting
period, as determined before the allocation, by less than 10 percent; or
(2) the value of the asset producing the receipt for which the allocation would be made
is less than 10 percent of the total value of the trust’s assets at the beginning
of the accounting period. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3359. Deferred compensation, annuities, and similar payments
(a) In this section:
(1) “Payment” means a payment that a trustee may receive over a fixed number of years
or during the life of one or more individuals because of services rendered or property
transferred to the payer in exchange for future payments. The term includes a payment
made in money or property from the payer’s general assets or from a separate fund
created by the payer. For purposes of subsections (d), (e), (f), and (g) of this section,
the term also includes any payment from any separate fund, regardless of the reason
for the payment.
(2) “Separate fund” includes a private or commercial annuity, an individual retirement
account, and a pension, profit-sharing, stock-bonus, or stock ownership plan.
(b) To the extent that payment is characterized as interest, a dividend, or a payment
made in lieu of interest or a dividend, a trustee shall allocate the payment to income.
The trustee shall allocate to principal the balance of the payment and any other payment
received in the same accounting period that is not characterized as interest, a dividend,
or an equivalent payment.
(c) If no part of a payment is characterized as interest, a dividend, or an equivalent
payment and all or part of the payment is required to be made, a trustee shall allocate
to income 10 percent of the part that is required to be made during the accounting
period and the balance to principal. If no part of a payment is required to be made
or the payment received is the entire amount to which the trustee is entitled, the
trustee shall allocate the entire payment to principal. For purposes of this subsection,
a payment is not required to be made to the extent that it is made because the trustee
exercises a right of withdrawal.
(d) Except as otherwise provided in subsection (e) of this section, subsections (f) and
(g) of this section apply and subsections (b) and (c) of this section do not apply
in determining the allocation of a payment made from a separate fund to:
(1) a trust to which an election to qualify for a marital deduction under Section 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or
(2) a trust that qualifies for the marital deduction under Section 2056(b)(5) of the Internal Revenue Code of 1986, as amended.
(e) Subsections (d), (f), and (g) of this section do not apply if and to the extent that
the series of payments would, without the application of subsection (d), qualify for
the marital deduction under Section 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.
(f) A trustee shall determine the internal income of each separate fund for the accounting
period as if the separate fund were a trust subject to this chapter. Upon request
of the surviving spouse, the trustee shall demand that the person administering the
separate fund distribute the internal income to the trust. The trustee shall allocate
a payment from the separate fund to income to the extent of the internal income of
the separate fund and distribute that amount to the surviving spouse. The trustee
shall allocate the balance of the payment to principal. Upon request of the surviving
spouse, the trustee shall allocate principal to income to the extent the internal
income of the separate fund exceeds payments made from the separate fund to the trust
during the accounting period.
(g) If a trustee cannot determine the internal income of a separate fund but can determine
the value of the separate fund, the internal income of the separate fund is deemed
to equal four percent of the fund’s value, according to the most recent statement
of value preceding the beginning of the accounting period. If the trustee can determine
neither the internal income of the separate fund nor the fund’s value, the internal
income of the fund is deemed to equal the product of the interest rate and the present
value of the expected future payments and determined under Section 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the accounting period for which the computation
is made.
(h) This section does not apply to a payment to which section 3360 of this title applies. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3360. Liquidating asset
(a) As used in this section, “liquidating asset” means an asset whose value will diminish
or terminate because the asset is expected to produce receipts for a period of limited
duration. The term includes a leasehold, patent, copyright, royalty right, and right
to receive payments during a period of more than one year under an arrangement that
does not provide for the payment of interest on the unpaid balance. The term does
not include a payment subject to section 3359 of this title, resources subject to section 3361 of this title, timber subject to section 3362 of this title, an activity subject to section 3364 of this title, an asset subject to section 3365 of this title, or any asset for which the trustee establishes a reserve for depreciation under
section 3373 of this title.
(b) A trustee shall allocate to income 10 percent of the receipts from a liquidating asset
and the balance to principal. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3361. Minerals, water, and other natural resources
(a) To the extent that a trustee accounts for receipts from an interest in minerals or
other natural resources pursuant to this section, the trustee shall allocate them
as follows:
(1) If received as nominal delay rental or nominal annual rent on a lease, a receipt must
be allocated to income.
(2) If received from a production payment, a receipt must be allocated to income if and
to the extent that the agreement creating the production payment provides a factor
for interest or its equivalent. The balance must be allocated to principal.
(3) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus,
or delay rental is more than nominal, 90 percent must be allocated to principal and
the balance to income.
(4) If an amount is received from a working interest or any other interest not provided
for in subdivision (1), (2), or (3) of this subsection, 90 percent of the net amount
received must be allocated to principal and the balance to income.
(b) An amount received on account of an interest in water that is renewable must be allocated
to income. If the water is not renewable, 90 percent of the amount must be allocated
to principal and the balance to income.
(c) This chapter applies whether or not a decedent or donor was extracting minerals, water,
or other natural resources before the interest became subject to the trust.
(d) If a trust owns an interest in minerals, water, or other natural resources on July
1, 2012, the trustee may allocate receipts from the interest as provided in this chapter
or in the manner used by the trustee prior to July 1, 2012. If the trust acquires
an interest in minerals, water, or other natural resources after July 1, 2012, the
trustee shall allocate receipts from the interest as provided in this chapter. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3362. Timber
(a) To the extent that a trustee accounts for receipts from the sale of timber and related
products pursuant to this section, the trustee shall allocate the net receipts:
(1) to income to the extent that the amount of timber removed from the land does not exceed
the rate of growth of the timber during the accounting periods in which a beneficiary
has a mandatory income interest;
(2) to principal to the extent that the amount of timber removed from the land exceeds
the rate of growth of the timber or the net receipts are from the sale of standing
timber;
(3) to or between income and principal if the net receipts are from the lease of timberland
or from a contract to cut timber from land owned by a trust, by determining the amount
of timber removed from the land under the lease or contract and applying the rules
in subdivision (1) and (2) of this subsection; or
(4) to principal to the extent that advance payments, bonuses, and other payments are
not allocated pursuant to subdivision (1), (2), or (3) of this subsection.
(b) In determining net receipts to be allocated pursuant to subsection (a) of this section,
a trustee shall deduct and transfer to principal a reasonable amount for depletion.
(c) This chapter applies whether or not a decedent or transferor was harvesting timber
from the property before it become subject to the trust.
(d) If a trust owns an interest in timberland on July 1, 2012, the trustee may allocate
net receipts from the sale of timber and related products as provided in this chapter
or in the manner used by the trustee before July 1, 2012. If the trust acquires an
interest in timberland after July 1, 2012, the trustee shall allocate net receipts
from the sale of timber and related products as provided in this chapter. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3363. Property not productive of income
(a) If a marital deduction is allowed for all or part of a trust whose assets consist
substantially of property that does not provide the spouse with sufficient income
from or use of the trust assets, and if the amounts that the trustee transfers from
principal to income under section 3324 of this title and distributes to the spouse from principal pursuant to the terms of the trust are
insufficient to provide the spouse with the beneficial enjoyment required to obtain
the marital deduction, the spouse may require the trustee to make property productive
of income, convert property within a reasonable time, or exercise the power conferred
by subsection 3324(a) of this title. The trustee may decide which action or combination of actions to take.
(b) In cases not governed by subsection (a) of this section, proceeds from the sale or
other disposition of an asset are principal without regard to the amount of income
the asset produces during any accounting period. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3364. Derivatives and options
(a) As used in this section, “derivative” means a contract or financial instrument or
a combination of contracts and financial instruments which gives a trust the right
or obligation to participate in some or all changes in the price of a tangible or
intangible asset or group of assets, or changes in a rate, an index of prices or rates,
or other market indicator for an asset or a group of assets.
(b) To the extent that a trustee does not account under section 3353 of this title for transactions in derivatives, the trustee shall allocate to principal receipts
from and disbursements made in connection with those transactions.
(c) If a trustee grants an option to buy property from the trust, whether or not the trust
owns the property when the option is granted, grants an option that permits another
person to sell property to the trust, or acquires an option to buy property for the
trust or an option to sell an asset owned by the trust, and the trustee or other owner
of the asset is required to deliver the asset if the option is exercised, an amount
received for granting the option must be allocated to principal. An amount paid to
acquire the option must be paid from principal. A gain or loss realized upon the exercise
of an option, including an option granted to a settlor of the trust for services rendered,
must be allocated to principal. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3365. Asset-backed securities
(a) As used in this section, “asset-backed security” means an asset whose value is based
upon the right it gives the owner to receive distributions from the proceeds of financial
assets that provide collateral for the security. The term includes an asset that gives
the owner the right to receive from the collateral financial assets only the interest
or other current return or only the proceeds other than interest or current return.
The term does not include an asset to which section 3351 or 3359 of this title applies.
(b) If a trust receives a payment from interest or other current return and from other
proceeds of the collateral financial assets, the trustee shall allocate to income
the portion of the payment which the payer identifies as being from interest or other
current return and shall allocate the balance of the payment to principal.
(c) If a trust receives one or more payments in exchange for the trust’s entire interest
in an asset-backed security in one accounting period, the trustee shall allocate the
payments to principal. If a payment is one of a series of payments that will result
in the liquidation of the trust’s interest in the security over more than one accounting
period, the trustee shall allocate 10 percent of the payment to income and the balance
to principal. (Added 2011, No. 114 (Adj. Sess.), § 1.)
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Subchapter 005: ALLOCATION OF DISBURSEMENTS DURING ADMINISTRATION OF TRUST
§ 3371. Disbursements from income
A trustee shall make the following disbursements from income to the extent that they
are not disbursements to which subdivision 3331(2)(B) or (C) of this title applies:
(1) one-half of the regular compensation of the trustee and of any person providing investment
advisory or custodial services to the trustee;
(2) one-half of all expenses for accountings, judicial proceedings, or other matters that
involve both the income and remainder interests;
(3) all of the other ordinary expenses incurred in connection with the administration,
management, or preservation of trust property and the distribution of income, including
interest, ordinary repairs, regularly recurring taxes assessed against principal,
and expenses of a proceeding or other matter that concerns primarily the income interest;
and
(4) recurring premiums on insurance covering the loss of a principal asset or the loss
of income from or use of the asset. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3372. Disbursements from principal
(a) A trustee shall make the following disbursements from principal:
(1) the remaining one-half of the disbursements described in subdivisions 3371(1) and
(2) of this title;
(2) all of the trustee’s compensation calculated on principal as a fee for acceptance,
distribution, or termination, and disbursements made to prepare property for sale;
(3) payments on the principal of a trust debt;
(4) expenses that extend the life of trust property or that change the form of principal
to an improvement or accretion to another item of trust property;
(5) expenses of a proceeding that concerns primarily principal, including a proceeding
to construe the trust or to protect the trust or its property;
(6) premiums paid on a policy of insurance not described in subdivision 3371(4) of this title of which the trust is the owner and beneficiary;
(7) estate, inheritance, and other transfer taxes, including penalties, apportioned to
the trust; and
(8) disbursements related to environmental matters, including reclamation, assessing environmental
conditions, remedying and removing environmental contamination, monitoring remedial
activities and the release of substances, preventing future releases of substances,
collecting amounts from persons liable or potentially liable for the costs of those
activities, penalties imposed under environmental laws or regulations and other payments
made to comply with those laws or regulations, statutory or common law claims by third
parties, and defending claims based on environmental matters.
(b) If a principal asset is encumbered with an obligation that requires income from that
asset to be paid directly to the creditor, the trustee shall transfer from principal
to income an amount equal to the income paid to the creditor in reduction of the principal
balance of the obligation. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3373. Transfers from income to principal for depreciation
(a) As used in this section, “depreciation” means a reduction in value due to wear, tear,
decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of
more than one year.
(b) A trustee may transfer to principal a reasonable amount of the net cash receipts from
a principal asset that is subject to depreciation, but may not transfer any amount
for depreciation in the following instances:
(1) of that portion of real property used or available for use by a beneficiary as a residence
or of tangible personal property held or made available for the personal use or enjoyment
of a beneficiary;
(2) during the administration of a decedent’s estate; or
(3) under this section if the trustee is accounting under section 3353 of this title for the business or activity in which the asset is used.
(c) An amount transferred to principal need not be held as a separate fund. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3374. Transfers from income to reimburse principal
(a) If a trustee makes or expects to make a principal disbursement described in this section,
the trustee may transfer an appropriate amount from income to principal in one or
more accounting periods to reimburse principal or to provide a reserve for future
principal disbursements.
(b) Principal disbursements to which subsection (a) of this section applies include the
following, but only to the extent that the trustee has not been and does not expect
to be reimbursed by a third party:
(1) an amount chargeable to income but paid from principal because it is unusually large,
including extraordinary repairs;
(2) a capital improvement to a principal asset, whether in the form of changes to an existing
asset or the construction of a new asset, including special assessments;
(3) disbursements made to prepare property for rental, including tenant allowances, leasehold
improvements, and broker’s commissions;
(4) periodic payments on an obligation secured by a principal asset to the extent that
the amount transferred from income to principal for depreciation is less than the
periodic payments; and
(5) disbursements described in subdivision 3372(a)(7) of this title.
(c) If the asset whose ownership gives rise to the disbursements becomes subject to a
successive income interest after an income interest ends, a trustee may continue to
transfer amounts from income to principal as provided in subsection (a) of this section. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3375. Income taxes
(a) A tax required to be paid by a trustee based on receipts allocated to income shall
be paid from income.
(b) A tax required to be paid by a trustee based on receipts allocated to principal shall
be paid from principal, even if the tax is called an income tax by the taxing authority.
(c) A tax required to be paid by a trustee on the trust’s share of an entity’s taxable
income shall be paid:
(1) from income to the extent that receipts from the entity are allocated only to income;
(2) from principal to the extent that receipts from the entity are allocated only to principal;
(3) proportionately from principal and income to the extent that receipts from the entity
are allocated to both income and principal; and
(4) from principal to the extent that the tax exceeds the total receipts from the entity.
(d) After applying subsections (a) through (c) of this section, the trustee shall adjust
income or principal receipts to the extent that the trust’s taxes are reduced because
the trust receives a deduction for payments made to a beneficiary. (Added 2011, No. 114 (Adj. Sess.), § 1.)
§ 3376. Adjustments between principal and income because of taxes
(a) A fiduciary may make adjustments between principal and income to offset the shifting
of economic interests or tax benefits between income beneficiaries and remainder beneficiaries
which arise from:
(1) elections and decisions, other than those described in subsection (b) of this section,
that the fiduciary makes from time to time regarding tax matters;
(2) an income tax or any other tax that is imposed upon the fiduciary or a beneficiary
as a result of a transaction involving or a distribution from the estate or trust;
or
(3) subject to subsection (b) of this section, the ownership by an estate or trust of
an interest in an entity whose taxable income, whether or not distributed, is includable
in the taxable income of the estate, trust, or a beneficiary.
(b) A trustee shall make an adjustment from principal to income to compensate an income
beneficiary for taxes paid or payable by the income beneficiary in respect of the
taxable income of an entity that is taxable to the income beneficiary but that is
distributed to the trustee and allocated to principal.
(c) If the amount of an estate tax marital deduction or charitable contribution deduction
is reduced because a fiduciary deducts an amount paid from principal for income tax
purposes instead of deducting it for estate tax purposes, and as a result estate taxes
paid from principal are increased and income taxes paid by an estate, trust, or beneficiary
are decreased, each estate, trust, or beneficiary that benefits from the decrease
in income tax shall reimburse the principal from which the increase in estate tax
is paid. The total reimbursement shall equal the increase in the estate tax to the
extent that the principal used to pay the increase would have qualified for a marital
deduction or charitable contribution deduction but for the payment. The proportionate
share of the reimbursement for each estate, trust, or beneficiary whose income taxes
are reduced shall be the same as its proportionate share of the total decrease in
income tax. An estate or trust shall reimburse principal from income. (Added 2011, No. 114 (Adj. Sess.), § 1.)