469.411. Determination of unitrust amount--definitions--exclusions to net fair market value of assets--applicability of section to certain trusts.
Determination of unitrust amount--definitions--exclusions to net fairmarket value of assets--applicability of section to certaintrusts.
469.411. 1. If the provisions of this section apply to a trust, theunitrust amount shall be determined as follows:
(1) For the first three accounting periods of the trust, the unitrustamount for a current valuation year of the trust shall be a percentagebetween three and five percent that is specified by the terms of thegoverning instrument or by the election made in accordance with subdivision(2) of subsection 5 of this section, of the net fair market values of theassets held in the trust on the first business day of the current valuationyear;
(2) Beginning with the fourth accounting period of the trust, theunitrust amount for a current valuation year of the trust shall be apercentage between three and five percent that is specified by the terms ofthe governing instrument or by the election made in accordance withsubdivision (2) of subsection 5 of this section, of the average of the netfair market values of the assets held in the trust on the first businessday of the current valuation year and the net fair market values of theassets held in the trust on the first business day of each prior valuationyear, regardless of whether this section applied to the ascertainment ofnet income for all valuation years;
(3) The unitrust amount for the current valuation year computedpursuant to subdivision (1) or (2) of this subsection shall beproportionately reduced for any distributions, in whole or in part, otherthan distributions of the unitrust amount, and for any payments ofexpenses, including debts, disbursements and taxes, from the trust within acurrent valuation year that the trustee determines to be material andsubstantial, and shall be proportionately increased for the receipt, otherthan a receipt that represents a return on investment, of any additionalproperty into the trust within a current valuation year;
(4) For purposes of subdivision (2) of this subsection, the net fairmarket values of the assets held in the trust on the first business day ofa prior valuation year shall be adjusted to reflect any reduction, in thecase of a distribution or payment, or increase, in the case of a receipt,for the prior valuation year pursuant to subdivision (3) of thissubsection, as if the distribution, payment or receipt had occurred on thefirst day of the prior valuation year;
(5) In the case of a short accounting period, the trustee shallprorate the unitrust amount on a daily basis;
(6) In the case where the net fair market value of an asset held inthe trust has been incorrectly determined either in a current valuationyear or in a prior valuation year, the unitrust amount shall be increasedin the case of an undervaluation, or be decreased in the case of anovervaluation, by an amount equal to the difference between the unitrustamount determined based on the correct valuation of the asset and theunitrust amount originally determined.
2. As used in this section, the following terms mean:
(1) "Current valuation year", the accounting period of the trust forwhich the unitrust amount is being determined;
(2) "Prior valuation year", each of the two accounting periods of thetrust immediately preceding the current valuation year.
3. In determining the sum of the net fair market values of the assetsheld in the trust for purposes of subdivisions (1) and (2) of subsection 1of 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 moreincome beneficiaries of the trust have or had the right to occupy, or haveor had the right to possess or control, other than in a capacity astrustee, and instead the right of occupancy or the right to possession orcontrol shall be deemed to be the unitrust amount with respect to theresidential property or the tangible personal property; or
(2) Any asset specifically given to a beneficiary under the terms ofthe trust and the return on investment on that asset, which return oninvestment shall be distributable to the beneficiary.
4. In determining the net fair market value of each asset held in thetrust pursuant to subdivisions (1) and (2) of subsection 1 of this section,the trustee shall, not less often than annually, determine the fair marketvalue of each asset of the trust that consists primarily of real propertyor other property that is not traded on a regular basis in an active marketby appraisal or other reasonable method or estimate, and thatdetermination, if made reasonably and in good faith, shall be conclusive asto all persons interested in the trust. Any claim based on a determinationmade pursuant to this subsection shall be barred if not asserted in ajudicial proceeding brought by any beneficiary with any interest whatsoeverin the trust within two years after the trustee has sent a report to allqualified beneficiaries that adequately discloses the facts constitutingthe claim. The rules set forth in subsection 2 of section 469.409 shallapply 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 whichthe 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'sdiscretion, elects to have this section apply unless the instrumentcreating the trust specifically prohibits an election under thissubdivision. The trustee shall deliver notice to all qualifiedbeneficiaries and the settlor of the trust, if he or she is then living, ofthe trustee's intent to make such an election at least sixty days beforemaking that election. The trustee shall have sole authority to make theelection. Section 469.402 shall apply for all purposes of thissubdivision. An action or order by any court shall not be required. Theelection shall be made by a signed writing delivered to the settlor of thetrust, if he or she is then living, and to all qualified beneficiaries.The election is irrevocable, unless revoked by order of the court havingjurisdiction of the trust. The election may specify the percentage used todetermine the unitrust amount pursuant to this section, provided that suchpercentage is between three and five percent, or if no percentage isspecified, then that percentage shall be three percent. In making anelection pursuant to this subsection, the trustee shall be subject to thesame limitations and conditions as apply to an adjustment between incomeand principal pursuant to subsections 3 and 4 of section 469.405;
(3) No action of any kind based on an election made by a trusteepursuant to subdivision (2) of this subsection shall be brought against thetrustee by any beneficiary of that trust three years from the effectivedate of that election;
(4) If this section is made applicable under this subdivision to aninstitutional endowment fund, as defined in section 402.130, RSMo, therestrictions contained in section 402.134, RSMo, shall not apply to theextent payment of a unitrust amount would otherwise be prohibited.
(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)