2005 California Probate Code Sections 16335-16339 Article 2. General Provisions and Fiduciary Duties

PROBATE CODE
SECTION 16335-16339

16335.  (a) In allocating receipts and disbursements to or between
principal and income, and with respect to any other matter within the
scope of this chapter, a fiduciary:
   (1) Shall administer a trust or decedent's estate in accordance
with the trust or the will, even if there is a different provision in
this chapter.
   (2) May administer a trust or decedent's estate by the exercise of
a discretionary power of administration given to the fiduciary by
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,
and no inference that the fiduciary has improperly exercised the
discretion arises from the fact that the fiduciary has made an
allocation contrary to a provision of this chapter.
   (3) Shall administer a trust or decedent's estate in accordance
with this chapter if the trust or the will does not contain a
different provision or does not give the fiduciary a discretionary
power of administration.
   (4) Shall add a receipt or charge a disbursement to principal to
the extent that the trust or the will and this chapter do not provide
a rule for allocating the receipt or disbursement to or between
principal and income.
   (b) In exercising a discretionary power of administration
regarding a matter within the scope of this chapter, whether granted
by a trust, a will, or this chapter, including the trustee's power to
adjust under subdivision (a) of Section 16336, and the trustee's
power to convert into a unitrust or reconvert or change the unitrust
payout percentage pursuant to Sections 16336.4 to 16336.6, inclusive,
the fiduciary shall administer the trust or decedent's estate
impartially, except to the extent that the trust or the will
expresses an intention that the fiduciary shall or may favor one or
more of the beneficiaries. The exercise of discretion in accordance
with this chapter is presumed to be fair and reasonable to all
beneficiaries.
16336.  (a) Subject to subdivision (b), a trustee may make an
adjustment between principal and income to the extent the trustee
considers necessary if all of the following conditions are satisfied:
   (1) The trustee invests and manages trust assets under the prudent
investor rule.
   (2) The trust describes the amount that shall or may be
distributed to a beneficiary by referring to the trust's income.
   (3) The trustee determines, after applying the rules in
subdivision (a) of Section 16335, and considering any power the
trustee may have under the trust to invade principal or accumulate
income, that the trustee is unable to comply with subdivision (b) of
Section 16335.
   (b) A trustee may not make an adjustment between principal and
income in any of the following circumstances:
   (1) Where it would diminish the income interest in a trust (A)
that requires all of the income to be paid at least annually to a
spouse and (B) for which, if the trustee did not have the power to
make the adjustment, an estate tax or gift tax marital deduction
would be allowed, in whole or in part.
   (2) Where it would reduce 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) Where it would change the amount payable to a beneficiary as a
fixed annuity or a fixed fraction of the value of the trust assets.
   (4) Where it would be made from any amount that is permanently set
aside for charitable purposes under a will or trust, unless both
income and principal are so set aside.
   (5) Where possessing or exercising the power to make an adjustment
would cause 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) Where possessing or exercising the power to make an adjustment
would cause 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) Where the trustee is a beneficiary of the trust.
   (8) During any period in which the trust is being administered as
a unitrust pursuant to the trustee's exercise of the power to convert
provided in Section 16336.4 or 16336.5, or pursuant to the terms of
the governing instrument.
   (c) Notwithstanding Section 15620, if paragraph (5), (6), or (7)
of subdivision (b) 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 trust.
   (d) A trustee may release the entire power conferred by
subdivision (a) or may release only the power to adjust from income
to principal or the power to adjust from principal to income in
either of the following circumstances:
   (1) If the trustee is uncertain about whether possessing or
exercising the power will cause a result described in paragraphs (1)
to (6), inclusive, of subdivision (b).
   (2) 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 subdivision (b).
   (e) A release under subdivision (d) may be permanent or for a
specified period, including a period measured by the life of an
individual.
   (f) A trust that limits the power of a trustee to make an
adjustment between principal and income does not affect the
application of this section unless it is clear from the trust that it
is intended to deny the trustee the power of adjustment provided by
subdivision (a).
   (g) In deciding whether and to what extent to exercise the power
to make adjustments under this section, the trustee may consider, but
is not limited to, any of the following:
   (1) The nature, purpose, and expected duration of the trust.
   (2) The intent of the settlor.
   (3) The identity and circumstances of the beneficiaries.
   (4) The needs for liquidity, regularity of income, and
preservation and appreciation of capital.
   (5) The assets held in the trust; 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 other statutes 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 trust gives 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.
   (9) The anticipated tax consequences of an adjustment.
   (h) Nothing in this section or in this chapter is intended to
create or imply a duty to make an adjustment, and a trustee is not
liable for not considering whether to make an adjustment or for
choosing not to make an adjustment.
16336.4.  (a) Unless expressly prohibited by the governing
instrument, a trustee may convert a trust into a unitrust, as
described in this section. A trust that limits the power of the
trustee to make an adjustment between principal and income or modify
the trust does not affect the application of this section unless it
is clear from the governing instrument that it is intended to deny
the trustee the power to convert into a unitrust.
   (b) The trustee may convert a trust into a unitrust without a
court order if all of the following apply:
   (1) The conditions set forth in subdivision (a) of Section 16336
are satisfied.
   (2) The unitrust proposed by the trustee conforms to the
provisions of paragraphs (1) to (8), inclusive, of subdivision (e).
   (3) The trustee gives written notice of the trustee's intention to
convert the trust into a unitrust and furnishes the information
required by subdivision (c). The notice shall comply with the
requirements of Chapter 5 (commencing with Section 16500), including
notice to a beneficiary who is a minor and to the minor's guardian,
if any.
   (4) No beneficiary objects to the proposed action in a writing
delivered to the trustee within the period prescribed by subdivision
(d) of Section 16502 or a longer period as is specified in the notice
described in subdivision (c).
   (c) The notice described in paragraph (3) of subdivision (b) shall
include a copy of Sections 16336.4 to 16336.7, inclusive, and all of
the following additional information:
   (1) A statement that the trust shall be administered in accordance
with the provisions of subdivision (e) and the effective date of the
conversion.
   (2) A description of the method to be used for determining the
fair market value of trust assets.
   (3) The amount actually distributed to the income beneficiary
during the previous accounting year of the trust.
   (4) The amount that would have been distributed to the income
beneficiary during the previous accounting year of the trust had the
trustee's proposed changes been in effect during that entire year.
   (5)  The discretionary decisions the trustee proposes to make as
of the conversion date pursuant to subdivision (f).
   (d) In deciding whether to exercise the power conferred by this
section, a trustee may consider, among other things, the factors set
forth in subdivision (g) of Section 16336.
   (e) Except to the extent that the court orders otherwise or the
parties agree otherwise pursuant to Section 16336.5 after a trust is
converted to a unitrust, all of the following shall apply:
   (1) The trustee shall make regular distributions in accordance
with the governing instrument construed in accordance with the
provisions of this section.
   (2) The term "income" in the governing instrument shall mean an
annual distribution, the unitrust amount, equal to 4 percent, which
is the payout percentage, of the net fair market value of the trust's
assets, whether those assets would be considered income or principal
under other provisions of this chapter, averaged over the lesser of:
(A) the three preceding years, or (B) the period during which the
trust has been in existence.
   (3) During each accounting year of the trust following its
conversion into a unitrust, the trustee shall, as early in the year
as is practicable, furnish each income beneficiary with a statement
describing the computation of the unitrust amount for that accounting
year.
   (4) The trustee shall determine the net fair market value of each
asset held in the trust no less often than annually. However, the
following property shall not be included in determining the unitrust
amount:
   (A) Any residential property or any tangible personal property
that, as of the first business day of the current accounting year,
one or more current beneficiaries of the trust have or have had the
right to occupy, or have or have had the right to possess or control,
other than in his or her capacity as trustee of the trust, which
property shall be administered according to other provisions of this
chapter as though no conversion to a unitrust had occurred.
   (B) Any asset specifically devised to a beneficiary to the extent
necessary, in the trustee's reasonable judgment, to avoid a material
risk of exhausting other trust assets prior to termination of the
trust. All net income generated by a specifically devised asset
excluded from the unitrust computation pursuant to this subdivision
shall be accumulated or distributed by the trustee according to the
rules otherwise applicable to that net income pursuant to other
provisions of this chapter.
   (C) Any asset while held in a testator's estate or a terminating
trust.
   (5) The unitrust amount, as otherwise computed pursuant to this
subdivision, shall be reduced proportionately for any material
distribution made to accomplish a partial termination of the trust
required by the governing instrument or made as a result of the
exercise of a power of appointment or withdrawal, other than
distributions of the unitrust amount, and shall be increased
proportionately for the receipt of any material addition to the
trust, other than a receipt that represents a return on investment,
during the period considered in paragraph (2) in computing the
unitrust amount. For the purpose of this paragraph, a distribution or
an addition shall be "material" if the net value of the distribution
or addition, when combined with all prior distributions made or
additions received during the same accounting year, exceeds 10
percent of the value of the assets used to compute the unitrust
amount as of the most recent prior valuation date. The trustee may,
in the reasonable exercise of his or her discretion, adjust the
unitrust amount pursuant to this subdivision even if the
distributions or additions are not sufficient to meet the definition
of materiality set forth in the preceding sentence.
   (6) In the case of a short year in which a beneficiary's right to
payments commences or ceases, the trustee shall prorate the unitrust
amount on a daily basis.
   (7) Unless otherwise provided by the governing instrument or
determined by the trustee, the unitrust amount shall be considered
paid in the following order from the following sources:
   (A) From the net taxable income, determined as if the trust were
other than a unitrust.
   (B) From net realized short-term capital gains.
   (C) From net realized long-term capital gains.
   (D) From tax-exempt and other income.
   (E) From principal of the trust.
   (8) Expenses that would be deducted from income if the trust were
not a unitrust may not be deducted from the unitrust amount.
   (f) The trustee shall determine, in the trustee's discretion, all
of the following matters relating to administration of a unitrust
created pursuant to this section:
   (1) The effective date of a conversion to a unitrust.
   (2) The frequency of payments in satisfaction of the unitrust
amount.
   (3) Whether to value the trust's assets annually or more
frequently.
   (4) What valuation dates to use.
   (5) How to value nonliquid assets.
   (6) The characterization of the unitrust payout for income tax
reporting purposes. However, the trustee's characterization shall be
consistent.
   (7) Any other matters that the trustee deems appropriate for the
proper functioning of the unitrust.
   (g) A conversion into a unitrust does not affect a provision in
the governing instrument directing or authorizing the trustee to
distribute principal or authorizing the exercise of a power of
appointment over or withdrawal of all or a portion of the principal.
   (h) A trustee may not convert a trust into a unitrust in any of
the following circumstances:
   (1) If payment of the unitrust amount would change the amount
payable to a beneficiary as a fixed annuity or a fixed fraction of
the value of the trust assets.
   (2) If the unitrust distribution would be made from any amount
that is permanently set aside for charitable purposes under the
governing instrument and for which a federal estate or gift tax
deduction has been taken, unless both income and principal are set
aside.
   (3) If possessing or exercising the power to convert would cause
an individual to be treated as the owner of all or part of the trust
for federal income tax purposes, and the individual would not be
treated as the owner if the trustee did not possess the power to
convert.
   (4) If possessing or exercising the power to convert would cause
all or part of the trust assets to be subject to federal estate or
gift tax with respect to an individual, and the assets would not be
subject to federal estate or gift tax with respect to the individual
if the trustee did not possess the power to convert.
   (5) If the conversion would result in the disallowance of a
federal estate tax or gift tax marital deduction that would be
allowed if the trustee did not have the power to convert.
   (i) If paragraph (3) or (4) of subdivision (h) applies to a
trustee and there is more than one trustee, a cotrustee to whom the
provision does not apply may convert the trust unless the exercise of
the power by the remaining trustee or trustees is prohibited by the
governing instrument. If paragraph (3) or (4) of subdivision (h)
applies to all of the trustees, the court may order the conversion as
provided in subdivision (b) of Section 16336.5.
   (j) A trustee may release the power conferred by this section to
convert to a unitrust if (1) the trustee is uncertain about whether
possessing or exercising the power will cause a result described in
paragraph (3), (4), or (5) of subdivision (h), or (2) 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 subdivision (h). The release may be permanent or for a
specified period, including a period measured by the life of an
individual.
16336.5.  (a) The trustee may convert a trust into a unitrust upon
terms other than those set forth in subdivision (e) of Section
16336.4, without court order, if all of the following apply:
   (1) The conditions set forth in subdivision (a) of Section 16336
are satisfied.
   (2) The trustee gives written notice of the trustee's intention to
convert the trust into a unitrust and furnishes the information
required by subdivision (c) of Section 16336.4. The notice shall
comply with the requirements of Chapter 5 (commencing with Section
16500), including notice to a beneficiary who is a minor and to the
minor's guardian, if any.
   (3) The payout percentage to be adopted is at least 3 percent and
no greater than 5 percent.
   (4) All beneficiaries entitled to notice under Section 16501
consent in writing to the proposed action after having been furnished
with the notice described in subdivision (c) of Section 16336.4.
   (b) The court may order the conversion of a trust into a unitrust
as provided in this subdivision.
   (1) (A) The trustee may petition the court to approve the
conversion to a unitrust for any one of the following reasons:
   (i) A beneficiary timely objects to a proposed conversion to a
unitrust.
   (ii) The trustee proposes to make the conversion upon terms other
than those described in subdivision (e) of Section 16336.4.
    (iii) Paragraph (3) or (4) of subdivision (h) of Section 16336.4
applies to all currently acting trustees.
   (iv)  If the trustee determines, in its discretion, that a
petition is advisable.
   (B) In no event, however, may the court authorize conversion to a
unitrust with a payout percentage of less than 3 percent or greater
than 5 percent of the fair market value of the trust assets.
   (2) A beneficiary may petition the court to order the conversion.
   (3) The court shall approve the conversion proposed by the trustee
or direct the conversion requested by the beneficiary if the
conditions set forth in subdivision (a) of Section 16336 are
satisfied and the court concludes that conversion of the trust on the
terms proposed will enable the trustee to better comply with the
provisions of subdivision (b) of Section 16335.
   (4) In deciding whether to approve a proposed conversion or direct
a requested conversion, the court may consider, among other factors,
those described in subdivision (g) of Section 16336.
16336.6.  Unless expressly prohibited by the governing instrument, a
trustee may reconvert the trust from a unitrust or change the payout
percentage of a unitrust.
   (a) The trustee may make the reconversion or change in payout
percentage without a court order if all of the following conditions
are satisfied:
   (1) At least three years have elapsed since the most recent
conversion to a unitrust.
   (2) The trustee determines that reconversion or change in payout
percentage would enable the trustee to better comply with the
provisions of subdivision (b) of Section 16335.
   (3) One of the following notice requirements is satisfied:
   (A) In the case of a proposed reconversion, the trustee gives
written notice of the trustee's intention to convert that complies
with the requirements of Chapter 5 (commencing with Section 16500)
and no beneficiary objects to the proposed action in a writing
delivered to the trustee within the period prescribed by subdivision
(d) of Section 16502. The trustee's notice shall include the
information described in subdivision (3) and (4) of subdivision (c)
of Section 16336.4.
   (B) In the case of a proposed change in payout percentage, the
trustee gives written notice stating the new payout percentage that
the trustee proposes to adopt, which notice shall comply with the
requirements of Chapter 5 (commencing with Section 16500), and no
beneficiary objects to the proposed action in a writing delivered to
the trustee within the period prescribed by subdivision (d) of
Section 16502.
   (b) The trustee may make the reconversion or change in payout
percentage at any time pursuant to court order provided that: (1) the
court determines that reconversion or change in payout percentage
will enable the trustee to better comply with the provisions of
subdivision (b) of Section 16335, and (2) in the case of a change in
payout percentage, the new payout percentage is at least 3 percent
and no greater than 5 percent. The court may enter an order pursuant
to this subdivision upon the petition of the trustee or any
beneficiary.
16336.7.  (a) Sections 16336.4 to 16336.6, inclusive, shall not
impose any duty on the trustee to convert or reconvert a trust or to
consider a conversion or reconversion.
   (b) Subdivision (b) of Section 16503 applies to all actions
pursuant to Sections 16336.4 to 16336.6, inclusive, for which notice
of proposed action is given in compliance with Chapter 5 (commencing
with Section 16500), including notice to a beneficiary who is a minor
and to the minor's guardian, if any.
16337.  A trustee may give a notice of proposed action regarding a
matter governed by this chapter as provided in Chapter 5 (commencing
with Section 16500).  For the purpose of this section, a proposed
action includes a course of action and a decision not to take action.
16338.  In a proceeding with respect to a trustee's exercise or
nonexercise of the power to make an adjustment under Section 16336,
the sole remedy is to direct, deny, or revise an adjustment between
principal and income. In a proceeding with respect to a trustee's
exercise or nonexercise of a power conferred by Sections 16336.4 to
16336.6, inclusive, the sole remedy is to obtain an order directing
the trustee to convert the trust to a unitrust, to reconvert from a
unitrust, to change the distribution percentage, or to order any
administrative procedures the court determines to be necessary or
helpful for the proper functioning of the trust.
16339.  This chapter applies to every trust or decedent's estate
existing on or after January 1, 2000, except as otherwise expressly
provided in the trust or will or in this chapter.


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