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Chapter 1 - Probate Court - Administrative Provisions
Chapter 2 - Probate Court - Jurisdictions, Powers
Chapter 3 - Probate Court - Procedures
Chapter 4 - Fiduciaries
Chapter 5 - Wills: Execution and Construction
Chapter 6 - Decedents' Estates
Chapter 7 - Trusts
Chapter 8 - Mashantucket Pequot Uniform Gifts to Minors
Act
Chapter 9 - Durable Power of Attorney
Chapter 10 - Powers of Appointment
Chapter 11 - Disclaimer of Property
Chapter 12 - Protected Persons and Their Property
Chapter 13 - Living Will
CHAPTER 1. PROBATE COURT - ADMINISTRATIVE PROVISIONS
Section 1. Name
This law shall be known as the Mashantucket Pequot Tribal Probate Code.
Section 2. Establishment of the Probate Court
There is hereby established a division of the Mashantucket Pequot Tribal Court to be known as the Probate Court (hereinafter the Probate Court), which shall have jurisdiction over all inheritance and probate matters arising within the Mashantucket Pequot Tribe Reservation and all dependent tribal communities (hereinafter “tribal lands”), and inheritance and probate related matters involving or pertaining to tribal members and their families with significant ties to the tribal community.
Section 3. General Index
A general index shall be kept in the Probate Court of the records of all estates which have been or are pending, in which shall be entered the name of each such estate and the date and character of each proceeding in the Probate Court.
Section 4. Records
The records and files of the Probate Court shall be kept in a fire-resistant safe cabinet, except when the records and files are in actual use for the purpose of examination, recording, copying, or entry, or when the records and files, after being recorded or copied, are placed in storage as records and files not in current use.
Section 5. Certification of Records and Files
The records and files of the Probate Court may be certified by the judge or clerk of the court, any one of whom is authorized to use and affix the seal of the court. All such certified copies of records and files, with or without the seal of the court, shall be legal evidence, all orders, judgments and decrees of the Probate Court, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.
CHAPTER 2. PROBATE COURT - JURISDICTIONS, POWERS
Section 1. General Powers
The Probate Court shall have the power to:
a. grant administration of intestate estates of any person who has died domiciled on tribal lands;
b. admit wills to probate of any person who has died domiciled on tribal lands;
c. except as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property;
d. construe the meaning and effect of any will or trust agreement if a construction is required in connection with the administration or distribution of a trust or estate otherwise subject to the jurisdiction of the Probate Court, or, with respect to an intervivos trust, if that trust is or could be subject to jurisdiction of the court on request for an accounting pursuant to Chapter 3, Section 26, provided such an accounting need not be required;
e. to the extent provided for in Chapter 3, Section 26, call executors, administrators, trustees, guardians, conservators, persons appointed to sell the land of minors, and attorneys-in-fact acting under powers of attorney created in accordance with Chapter 9, Section 1, to account concerning the estates entrusted to their charge; and
f. make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of the Mashantucket Pequot Tribal Nation (hereinafter "Tribe").
CHAPTER 3. PROBATE COURT - PROCEDURES
Section 1. Entry Fees
There shall be no entry fees for any proceeding to the Probate Court.
Section 2. Miscellaneous Costs
The Probate Court may charge a fee for recordings, notices, service of process and certified copies.
Section 3. Payment of Costs, Fees and Expenses
a. The costs, fees and expenses provided for in connection with proceedings under Section 2 of this Chapter with respect to a decedent's estate shall be paid for by the executor, administrator, or if there is no such fiduciary, by a transferee.
b. The costs, fees and expenses provided for in connection with proceedings under Section 2 of this Chapter with respect to an accounting shall be paid by the trustee, guardian, conservator or other fiduciary.
c. The costs, fees and expenses provided for in connection with proceedings under Section 2 of this Chapter commenced on motion of the Probate Court shall be paid by the party against whom such costs are assessed by the court.
d. In all other cases, the petitioner shall pay the costs, fees and expenses unless otherwise provided by law.
Section 4. Giving of Orders of Notice
Any order of notice of a hearing in any proceeding in, or matter pending before, the Probate Court, which is required by law to be given to interested persons, may be made by the judge, or the clerk of court.
Section 5. Manner of Notice to be Fixed by Order of Court
The Probate Court may make any proper order for notice to be given to any person residing out of or absent from tribal lands and, except as otherwise provided, to any person within the tribal lands to whom particular notice of any proceeding before such court is required by law. The notice given under the order shall be a legal notice to such person.
Section 6. Giving of Public Notice
a. Whenever public notice is required in any proceeding in, or matter pending before, the Probate Court, except as provided in Sections 4 to 7 of this chapter, inclusive, such notice shall be by publication in a newspaper of general circulation in the area, but not The Pequot Times, the length of time which the court directs. The court may prescribe such further notice as it deems requisite.
b. Notwithstanding subsection (a) of this Section, notice by publication is not required if actual notice is received by all parties interested in a matter or proceeding unless such notice is requested by an interested party or is required by the court.
Section 7. Special Notice to be Given on Written Request
a. Any person who is interested in any estate, trust or other matter pending in any Probate Court, or who is interested in any application that may be made to any Probate Court for the probating of a will or the granting of administration, may, in person or by attorney, file with the court a written request for special notice to be given to him or his attorney of any application to the court and of any order passed by the Probate Court in such estate, trust or other matter. The request shall state the estate, trust or other matter, cause or proceeding of which notice is desired and the post-office address of the person desiring the notice. Thereupon the Probate Court shall give notice to such person or his attorney of any hearing in such estate, trust or other matter at least seven days before the time assigned for the hearing, in whatever manner the court finds to be reasonable under the circumstances.
b. Any request for a special notice in the matter of probating a will or granting administration, before any application is made therefor, shall be obligatory upon the Court for a period of 30 days from the date of filing the same.
Section 8. Reconsideration, Modification or Revocation of Order or Decree
a. Except as provided in subsection (e) of this Section, any order or decree made by Probate Court ex parte may, in the discretion of the court, be reconsidered and modified or revoked by the court. Reconsideration may be made on the court's own motion or, for cause shown satisfactory to the court, on the written application of any interested person. Such motion or application shall be made or filed before any appeal has been allowed or after withdrawal of all appeals which have been allowed. For the purposes of this Section, an ex parte order or decree is an order or decree entered in a proceeding of which no notice is required to be given to any party and no notice is given.
b. Except as provided in subsections (a) and (e) of this Section, any order or decree other than a decree authorizing the sale of real estate made by the Probate Court may, in the discretion of the court, be reconsidered and modified or revoked by the court, on the court's own motion or on the written application of any interested person. Such application shall be made or filed within 120 days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals. The court may reconsider and modify or revoke any such order or decree for any of the following reasons:
(1) for any reason, if all parties in interest consent to reconsideration, modification or revocation;
(2) for failure to provide legal notice to a party entitled to notice under law;
(3) to correct a scrivener's or clerical error;
(4) upon discovery or identification of parties in interest unknown to the court at the time of the order or decree.
c. Upon any modification or revocation there shall be the same right of and time for appeal as in the case of any other order or decree.
d. A hearing may be held in the discretion of the court on any motion or application for reconsideration, modification or revocation, and notice of the time and place of such hearing shall be given, in such manner as the court shall order, to all persons to whom notice of the order or decree to be reconsidered or notice of the hearings concerning such order or decree, was given, and to all persons by whom any such notice was waived, and to such other persons as the court may determine.
e. Except as provided in Chapter 6 Section 16, a decree or order made in reference to any estate may not be modified or revoked by the Probate Court as to assets lawfully transferred or distributed prior to the date of issuance of notice of hearing on a motion or application for reconsideration of such decree or order, or, if the court determines not to hold any such hearing, prior to the date of the court's order of revocation or modification.
Section 9. Examination of Witnesses
The Probate Court may, on its own motion or upon written application of any person having an interest in any matter before it, summon any person to appear and give testimony under oath relating to such matter.
Section 10. Return of Compliance with Order of Court
When the Probate Court orders any person to do any act, such person shall, upon compliance with the order, make written return to the court, which shall be prima facie evidence of the due execution of the order. The court may in its discretion require that such return be made under oath.
Section 11. Participation of the Health and Human Services Department in
Proceedings
In any proceeding in the Probate Court in which the Tribe is interested through its Health and Human Services Department, any employee of such department shall be permitted to participate fully in the proceeding in the same manner as any other interested party before the court. The judge of the Probate Court shall not require that the Tribe be represented by an attorney-at-law as a condition of participation.
Section 12. Appointment of Guardian Ad Litem for Minors and Incompetent,
Undetermined and Unborn Persons
a. In any proceeding before the Probate Court, the judge may appoint a guardian ad litem for any minor or incompetent, undetermined or unborn person, or may appoint one guardian ad litem for two or more of such minors or incompetent, undetermined or unborn persons, if it appears to the judge that one or more persons as individuals, or as member of a designated class or otherwise, have or may have an interest in the proceedings, and that one or more of them are minors, incompetent persons or persons undetermined or unborn at the time of the proceeding.
b. The appointment shall not be mandatory, but shall be within the discretion of the judge.
c. Any order or decree passed or action taken in any such proceeding shall affect all the minors, incompetent persons or persons thereafter born or determined for whom the guardian ad litem has been appointed, in the same manner as if they had been of the age of majority and competent and present in court after legal notice at the time of the action or the issuance of the order or decree.
d. Any appointment of a guardian ad litem may be made with or without notice and, if it appears to the judge that it is for the best interests of a minor having a parent or guardian to have as guardian ad litem some person other than the parent or guardian, the judge may appoint a disinterested person to be the guardian ad litem.
e. When the appointment is made in connection with the settlement of a decedent's estate or the settlement of the account of a trustee or other fiduciary, the person so appointed shall be authorized to represent the minor or incompetent, undetermined or unborn person in all proceedings for the settlement of the estate or account and subsequent accounts of the trustee or other fiduciary, or until his appointment is terminated by death, resignation or removal.
f. The guardian ad litem may be removed by the judge, without notice, whenever it appears to the judge to be in the best interests of the ward or wards of the guardian.
g. Any guardian ad litem appointed under the provisions of this Section may be allowed reasonable compensation by the judge appointing him and shall be paid as a part of the expenses of administration.
Section 13. Examination of Incapable Party. Expense
In any matter before the Probate Court in which the capacity of a party to the action is at issue, the court may order an examination of any allegedly incapable party by a physician or psychiatrist or, where appropriate, a psychologist, licensed to practice in the state of Connecticut. The expense of such examination may be charged against the petitioner, the respondent, the party who requested such exam or the estate of the alleged incapable in such proportion as the judge of the court determines. If any such party is unable to pay such expense and files an affidavit with the court demonstrating the inability to pay, the reasonable compensation shall be established by the judge.
Section 14. Probate Bonds
a. As used in this Chapter, except as otherwise provided, "bond" or "probate bond" means a bond with security given to secure the faithful performance by an appointed fiduciary of the duties of his trust and the administration of and accounting for all moneys and other property coming into his hands, as fiduciary, according to law.
b. Except as otherwise provided, every bond or probate bond shall be payable to the Tribe, shall be conditioned for the faithful performance by the principal in the bond of the duties of his trust and the administration of and accounting for all moneys and other property coming into his hands, as fiduciary, according to law, and shall be in such amount and with such security as shall be required by the judge of probate. If bond is required of a fiduciary, his appointment shall not be effective until the bond has been accepted by the Probate Court.
Section 15. Prohibition on Judges, Officers and Employees of Probate Court
Acting as Sureties or Issuing Probate Bonds
A judge of probate or officer or employee of the Probate Court shall not act as surety for, and shall not personally or as agent for any surety or bonding company, issue a probate bond to any administrator, executor, trustee or other person required to furnish a bond in any proceeding pending before the Probate Court.
Section 16. Substitution of New Bond
a. The principal or the surety, or the heirs, executors or administrators of the surety, upon any bond taken by Probate Court, may make written application to the court for an order permitting or requiring a new bond to be given in place of the existing bond. Thereupon the court shall cause reasonable notice of the application to be given to the surety, if the application is made by the surety, his heirs, executors or administrators, and to all persons whom the court finds to be interested in the estate for the security of which the bond was given, to appear and be heard upon the application at a time and place stated in the notice.
b. If, upon hearing, the court finds that to grant the application would not prejudice the estate, it may authorize the principal to give a new probate bond, or order him to give a new bond within a time which it may limit. If the principal, having been ordered to give a new bond, fails to do so within the time limited by the court, it may remove him and appoint another in his stead. If the new bond is given to the approval of the court, the surety on the original bond and his representatives shall not be liable for any breach of the bond committed after the court approves the bond.
Section 17. Filing and Recording Bonds
The Probate Court shall cause all bonds taken by it to be filed and recorded. In case of the loss of any bond, a certified copy of the record of the bond shall be admissible in evidence.
Section 18. Examination of Estate. Removal of Principal
a. The surety upon any bond taken by the Probate Court, or any person interested in the bond, may at any time make written application to the court for an order requiring the principal to exhibit fully in writing before such court the condition of the estate held by him, so that it may be ascertained whether the estate is being properly managed. Thereupon the court shall cause reasonable notice of such application to be given to the principal. If, upon hearing, the court finds that such application was made in good faith, it shall make such order.
b. If the principal refuses to obey such order or if, upon his obeying it, the court finds that the estate is not being properly managed by him, it shall remove him and appoint another in his place.
Section 19. Action on Probate Bond by Aggrieved Person
a. Any person claiming to be aggrieved by the breach of a probate bond, as representative of the estate in connection with which the bond was given, or in his own right or in the right of himself and all others having an interest in the estate, may bring an action to recover for the breach in his own name.
b. If, upon an action or a bond brought by one not acting as a representative of the estate, the judge concludes that the action ought to be prosecuted on behalf of all persons interested in the estate in connection with which the bond was given, he may order that the action shall include all such persons; but, in that event, such persons need not be named in the writ or complaint.
c. The plaintiff in any action brought by him as representative of the estate or on his behalf and that of all persons interested in it shall account for any moneys recovered to the Probate Court in which the estate is in settlement. The court may allow to the plaintiff a reasonable sum for his disbursements and services in the action and in any subsequent proceedings to enforce payment of any sum recovered, to be paid from the amount recovered or by the estate.
Section 20. Enforcement of Judgment on Bond
a. Any representative of an estate or any person suing on his own behalf and that of all others interested in the estate, who secures a judgment upon a probate bond, may file a judgment lien in his own name as representative of the estate or as representing himself and all other interested persons. He may, with the permission of the judge of the Probate Court, bring any proper action to enforce the lien. He may, by order of the Probate Court secured as provided in Section 23 of this Chapter, sell any such lien or any real property obtained by the enforcement of the lien or upon execution and he may release the lien by a certificate of discharge.
b. If any person bringing such an action on his own behalf and that of all others interested in the estate dies or is guilty of a breach of duty, the Probate Court may appoint some other person in his stead. Such other person shall, upon giving a bond as provided in Section 19 of this Chapter, acceptable to the court, be vested with the same rights and subject of the same duties as the person in whose stead he is acting with reference to the action, the enforcement of any judgment recovered or lien thereon and the discharge of any such lien.
Section 21. Compromise and Settlement of Claims
Upon application by executors, guardians, conservators, administrators, trustees in insolvency and trustees appointed or whose appointment has been approved by the Probate Court, the court may, after public notice and hearing, authorize such fiduciaries to compromise and settle any doubtful or disputed claims or actions, or any appeal from probate in favor of or against the estates or persons represented by them.
Section 22. Suit upon Claims. Time Limitation
When any guardian, conservator or testamentary or other trustee required to account in the Probate Court is unable to settle or adjust any claim against him as such, or when any such guardian, conservator or trustee and a claimant against him are unable to agree concerning the amount or validity of such claim, such guardian, conservator or trustee may give written notice to such claimant of the disallowance of his claim, wholly or in part. Unless such claimant commences a suit against such guardian, conservator or trustee within four months after such notice has been given, such claimant shall be barred of his claim against such guardian, conservator or trustee, except such part as has been allowed, and of any such claim against the estate or trust; but, if such creditor dies within such four months and before suit has been brought, a period of four months from his death shall be allowed to his executor or administrator within which to commence such suit.
Section 23. Sale of Chose in Action and Other Property
Before the final settlement of any estate, the Probate Court may order the sale of the credits and chooses in action belonging to such estate, and may at any time order the sale of personal property, and in the case of an insolvent debtor's estate of all or any property, as it finds for the interest of the estate, in a manner and after notice which it judges reasonable. The court, in making orders for the sale of the property described herein, may order it to be sold at public or private sale at the discretion of the person authorized to make the sale. After a hearing the court may authorize that the property be sold to the fiduciary either directly or under the provisions of Section 24 of this Chapter, except that if a public sale is ordered, the fiduciary may be the purchaser only if the sale is made under Section 24 of this Chapter. In the case of any proposed sale to a fiduciary, any notice sent to interested parties and any public notice shall indicate that the fiduciary is the proposed purchaser.
Section 24. Sale of Personal Property by Other than Fiduciary
a. Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after public notice and other notice which the court may order and after hearing, the Probate Court may authorize a person other than the fiduciary to sell the whole or any part of or any interest in any personal property of any incapable person, minor, missing person, deceased person or trustee, or any property to which the fiduciary may hold legal title in such capacity, if:
(1) such person has first given a probate bond that he will faithfully administer and account for the proceeds of the sale according to law; and
(2) the court finds that to grant the application would be in the best interests of the parties in interest. If any party having an interest in such personal property is not in being or is not ascertained or is under a disability, the court shall appoint a guardian ad litem to represent the interest of such party at the hearing, unless such party already is represented by a guardian or by a conservator. Such order, and the sale thereunder, shall be conclusive upon all persons then or thereafter existing whose interests have been so represented.
b. The person selling the personal property shall pay to the fiduciary the sum for which such personal property was sold.
c. The Probate Court shall direct whether the sale shall be public or private, and, if public, the notice thereof which shall be given, and, if private, may authorize the sale at a price and upon terms, including such mortgage or mortgages, as it considers reasonable or advisable.
Section 25. When Probate Bond not Required
The Probate Court may dispense with the requirement of a probate bond as set forth in Sections 23 and 24 of this Chapter, if: (1) the fiduciary is a bank or trust company authorized to do business and maintaining a place of business in the state of Connecticut; (2) the fiduciary is a foreign bank or trust company which has qualified and been approved as such fiduciary; (3) the fiduciary is excused by the will from giving a probate bond; or (4) the Probate Court determines that a bond is not required for the protection of interested parties.
Section 26. Jurisdiction of Accounts of Fiduciaries. Appointment of Auditor
to Examine Accounts
a. The Probate Court shall have jurisdiction of the interim and final accounts of testamentary trustees, trustees appointed by the Probate Court, conservators, guardians, persons appointed by the Probate Court to sell the land of minors, executors, administrators and trustees in insolvency, and, to the extent provided for in this Section, shall have jurisdiction of accounts of the actions of trustees of inter vivos trusts and attorneys-in-fact acting under powers of attorney created in accordance with Chapter 9, Section 1.
b. A trustee or settlor of an inter vivos trust or an attorney-in-fact or the grantor of such power of attorney may make application to the Probate Court for allowance of the trustee's or attorney's actions under such trust or power.
c.
(1) Any beneficiary of an inter vivos trust may petition the Probate Court for an accounting by the trustee or trustees. The court may, after hearing with notice to all interested parties, grant the petition and require an accounting for such periods of time as it determines are reasonable and necessary on finding that: (a) the beneficiary has an interest in the trust sufficient to entitle him to an accounting; (b) cause has been shown that an accounting is necessary, and (c) the petition is not for the purpose of harassment.
(2) The Probate Court shall have jurisdiction to require an accounting under this Section if: (a) a trustee of the trust resides on the tribal lands; (b) in the case of a corporate trustee, the trustee has its principal place of business on the tribal lands;(c) any of the trust assets are maintained or evidences of intangible property of the trust are situated on tribal lands; or (d) the settlor resides on tribal lands.
(3) As used in this Section, "beneficiary" means any person currently receiving payments of income or principal from the trust, or who may be entitled to receive income or principal or both from the trust at some future date, or the legal representative of such person.
d. The action to submit an accounting to the court, whether by an inter vivos trustee or attorney acting under a power of attorney created in accordance with Chapter 9, Section 1 or whether pursuant to petition of another party, shall not subject the trust or the power of attorney to the continuing jurisdiction of the Probate Court.
e. If the court finds such appointment to be necessary and in the best interests of the estate, the court upon its own motion may appoint an auditor, to examine accounts over which the court has jurisdiction under this Section, except those accounts on matters in which the fiduciary or co-fiduciary is a corporation having trust powers. Costs of the audit may be charged to the fiduciary, any party in interest and the estate, in such proportion as the court shall direct if the court finds such charge to be equitable. Any such share may be paid by the Tribe, if the Probate Court determines that the person obligated to pay is unable to pay or to charge such amount to the estate would cause undue hardship.
f. Upon the allowance of any such account, the court shall determine the rights of the fiduciaries or the attorney-in-fact rendering the account and of the parties interested in the account, subject to appeal as in other cases. The court shall cause notice of the hearing on the account to be given in such manner and to such parties as it directs.
Section 27. Statement in Lieu of Account when Fiduciary is Sole Beneficiary
a. Except as provided in subsection (b) of this Section, or when any beneficiary is a trustee of a testamentary or inter vivos trust, if the fiduciary of a decedent's estate is the sole beneficiary of the residue of the estate, or if multiple fiduciaries of a decedent's estate are the only beneficiaries of the residue of the estate, and if all dispositions, if any, to other beneficiaries are bequests of specific personal property or of an amount certain or devises of specific real property, the fiduciary may, in lieu of any other accounting required under this chapter, file with the Probate Court a statement under oath that all debts, funeral expenses, taxes and expenses of administration have been paid, and such bequests and devises, if any, have been distributed and receipts therefor obtained. The statement shall include the total of any amount reported on the return of claims filed under Chapter 6, Section 44 and an itemized list of all funeral expenses, taxes and expenses of administration. The receipts of the beneficiaries of such bequests and devises shall be filed with the Probate Court at the time such statement is filed. The Probate Court may thereafter enter a decree releasing and discharging the fiduciary and the sureties on his bond, if any, from any further liability. Any fiduciary so discharged shall be excused from filing an accounting and any further returns with the court.
b. The Probate Court may, for cause shown, refuse to accept the statement and require an accounting from the fiduciary.
Section 28. Periodic Rendering of Accounts; Hearing. Nature of Account. Exceptions
a. All conservators, guardians, persons appointed by the Probate Court to sell land of minors and trustees, including those entrusted with testamentary trusts unless excused by the will creating the trust, shall render periodic accounts of their trusts under oath to the Probate Court at least once during each three-year period and more frequently if required to do so by the will or trust instrument creating the trust. Periodic accounts for filing only may be submitted to the court at any time during each three-year period. Upon receipt of a periodic account, the court shall cause notice of it and of its availability for examination at the court to be given in such manner and to such parties as it deems reasonable. Any such party may apply to the court for a hearing on the account. If an application for such a hearing is not received by the court from a party in interest within the time stated in the notice, the periodic account will be filed without hearing thereon and without allowance or disallowance thereof, and shall not be recorded. At the end of each three-year period from the date of the last allowance of a periodic account, or upon the earlier receipt of a final account, there shall be a hearing on all periodic accounts not previously allowed, and the final account, if any, in accordance with Sections 29 and 30 of this Chapter.
b. Each such periodic account shall include an inventory of the trust estate showing fully how the principal of the fund is invested and the items of income and expenditure. If there has been no change in the identity of the items comprising the principal of the fund since the last account which has been accepted and approved, it shall not be necessary to include an inventory of the trust estate.
c. If the estate held by any person in any such fiduciary capacity is less than $2,000, he shall not be required to render such account unless so ordered by the court.
Section 29. Allowance of Interim Accounts. Notice and Hearing
The Probate Court shall direct what notice, if any, shall be given to the parties in interest of the filing of any account described in Section 28 herein, and of the hearing thereon, and may adjust and allow the account. The court may make any order necessary and proper to secure the execution of the duties of such fiduciary, subject to appeal as in other cases.
Section 30. Notice and Hearing on Final Accounts
When an executor, administrator, conservator, guardian, trustee in insolvency or trustee of a testamentary trust exhibits his final account to the Probate Court for allowance, the court shall appoint a time and place for a hearing on the account and shall cause notice of the hearing to be given as it directs. Such fiduciary shall swear or affirm under oath to the truth of the account.
Section 31. Settlement of Account of Deceased Fiduciary
Whenever an executor, administrator, conservator, guardian, trustee in insolvency or trustee of any testamentary trust dies before completing and accounting for his trust, the executor or administrator of the deceased fiduciary shall settle the deceased fiduciary's account in the Probate Court. The amount found due from or to the deceased fiduciary shall be paid in the same manner as it would have been paid to or by him if the account had been settled in his lifetime.
Section 32. Appeals from Probate
Any person aggrieved by any order, denial or decree of the Probate Court in any matter, unless otherwise specially provided by law, may appeal therefrom to the Mashantucket Pequot Court of Appeals. Appeals from any decision rendered in any case after a record is made shall be on the record and shall not be a trial de novo.
Section 33. Time of Taking Appeals
a. An appeal under Section 32 of this Chapter by those of the age of majority and who are present or who have legal notice to be present, shall be taken within 30 days. If such persons have no notice to be present and are not present, then appeal shall be taken within 12 months.
b. An appeal from any Probate order for the payment of claims or dividends on claims against any insolvent estate shall not be allowed unless it is taken within 30 days after the making of such order.
Section 34. Time of Taking Appeals by Minors or Nonresidents
a. Except as provided in this Section, all appeals by persons who are minors at the time of the making of the order, denial or decree appealed from shall be taken within 12 months after they arrive at the age of majority.
b. In the case of any minor who has a guardian or guardian ad litem appointed and qualified by the Probate Court at the time of the making of the order, denial or decree, the time in which the minor or anyone on his behalf may appeal therefrom shall be one month from the date of such order, denial or decree if the guardian or guardian ad litem has had legal notice, as provided for the particular proceeding, of the time and place of the hearing on such proceeding concerning which such order, denial or decree was made.
c. All appeals by persons who were not present at such time and did not have legal notice to be present shall be taken within 12 months thereafter.
d. Any judge or clerk of the Probate Court or any fiduciary may cause written notice of any order, denial or decree of the Probate Court to be given to any person of the age of majority, or to the guardian or guardian ad litem of any minor who has not had legal notice of the hearing on the proceeding at which the order, denial or decree was passed and who may be aggrieved thereby. In any such case the person, minor, guardian or guardian ad litem may appeal only within one month after receiving such notice.
Section 35. Amendment to Appeal
In the event of any defect in the form of an appeal taken under the provisions of Section 32 of this Chapter by any aggrieved person, such person may obtain from the Probate Court an amendment to the appeal correcting the defect, provided the order for amendment is granted not later than 90 days after the date of the order, denial or decree of the Probate Court from which the appeal was originally taken.
Section 36. Interest of Appellant to be Stated
In each appeal from probate, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such Probate Court.
Section 37. Order of Notice
The Probate Court, in allowing an appeal, shall make such order of notice to persons interested as it deems reasonable. When the notice has been given by the appellant and proved to the court, the Court of Appeals may hear the appeal without further notice.
Section 38. Appellee to Give Bond
a. In any appeal from any order or decree of the Probate Court, if the appellee is the party who applied for the order or decree and if the appellee appears in the Court of Appeals to contest the matter being appealed, the Court of Appeals may, at its discretion, order the appellee to give bond to the Mashantucket Pequot Tribal Nation for the payment to the appellant of his costs of suit if judgment is rendered for the appellant.
b. If the appellee neglects to comply with the order of the court, the court may make any disposition of the case favorable to the appellant that it deems proper.
Section 1. "Fiduciary" Defined
As used in Chapter 4, unless otherwise defined or unless otherwise required by the context, "fiduciary" includes an executor, administrator, trustee, conservator or guardian.
Section 2. Fiduciary Certificate Effective for One Year
A certificate of the appointment of a fiduciary issued by the Clerk of the Court shall be sufficient evidence of the authority and identity of such fiduciary for all purposes for one year after the date of such issuance, in the absence of actual notice of revocation.
Section 3. When Payments by Fiduciaries Protected
a. Any person, acting as a fiduciary as defined by Section 1 of this Chapter or in any other fiduciary capacity, who in good faith makes payments or delivers property or estate pursuant to the order of the Probate Court before an appeal has been taken from such order, shall not be liable for the money so paid, or the property so delivered, even if the order under which such payment or delivery has been made is later reversed, vacated or set aside.
b. This Section shall not prevent a recovery of such money or property by the person entitled to it from any person receiving it or in possession of it.
Section 4. Investment of Funds
a. Custody of Securities. Transfer of Title. In the absence of an express provision to the contrary in the instrument, judgment, decree or order creating a trust or other fiduciary relationship or appointing a fiduciary, such fiduciary may entrust the custody of any bonds, stocks or other securities of the fiduciary estate to any national banking association, state bank, trust company or state bank and trust company in the state of Connecticut or New York or in the Commonwealth of Massachusetts or Pennsylvania, which is a member of the Federal Reserve System and whose capital, surplus and undivided profits in the aggregate are not less than 50 million dollars. Any such fiduciary may transfer title to any such bonds, stocks or other securities without any court order to do so.
b. Prudent investor rule.
(1) Except as provided in subsection (2) of this section, a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule, as set forth in (b) to (m).
(2) The prudent investor rule is a default rule that may be expanded, restricted, eliminated or otherwise altered by provisions of the trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on provisions of the trust.
c. Standard of care. Portfolio strategy. Risk and return objectives.
(1) A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill and caution.
(2) A trustee's investment and management decisions respecting individual assets shall be evaluated not in isolation, but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
(3) Among circumstances that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries: (i) General economic conditions; (ii) the possible effect of inflation or deflation; (iii) the expected tax consequences of investment decisions, strategies and distributions; (iv) the role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property and real property; (v) the expected total return from income and the appreciation of capital; (vi) related trusts and other income and resources of the beneficiaries; (vii) needs for liquidity, for regularity of income and for preservation or appreciation of capital; (viii) an asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries; (ix) the size of the portfolio; and (x) the nature and estimated duration of the trust.
(4) A trustee shall take reasonable steps to verify facts relevant to the investment and management of trust assets.
(5) Subject to the standard of sections (b) to (m), inclusive, a trustee may invest in any kind of property or type of investment.
(6) A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise.
d. Diversification. A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.
e. Duties at inception of trusteeship. Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements and other circumstances of the trust, and with the requirements of sections (b) to (m), inclusive.
f. Loyalty. A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries.
g. Impartiality. If a trust has two or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries.
h. Investment costs. In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust and the skills of the trustee.
i. Reviewing compliance. The prudent investor rule expresses a standard of conduct, not outcome. Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action.
j. Delegation of investment and management functions.
(1) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill and caution in: (i) Selecting an agent; (ii) establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and (iii) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.
(2) In performing a delegated function, an agent owes a duty to the trustee and to the trust to exercise reasonable care to comply with the scope and terms of the delegation and to exercise the delegated function with reasonable care, skill and caution. An attempted exoneration of the agent from liability for failure to meet such a duty is contrary to public policy and void.
(3) A trustee who complies with the requirements of subsection (1) of this section is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.
(4) By accepting the delegation of a trust function from the trustee of a trust that is subject to Mashantucket Pequot Tribal Law, an agent submits to the jurisdiction of the courts of Mashantucket and can be held liable by the courts of this state for any breach of duty arising out of the delegation agreement or the terms of sections (b) to (m), inclusive.
k. Language invoking standards of act. The following terms or comparable language in a trust instrument, unless otherwise limited or modified by the instrument, authorizes any investment or strategy permitted under sections (b) to (m), inclusive: "Investments permissible by tribal law for investment of trust funds", "legal investments", "authorized investments", "using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital", "prudent man rule", "prudent trustee rule", "prudent person rule", and "prudent investor rule".
l. Uniformity of application and construction. Sections (b) to (m), inclusive, shall be applied and construed to effectuate their general purpose to make uniform the law with respect to the subject of said sections.
m. Applicability. These provisions apply to trust existing on ore created after ________________. As applied to trusts existing on _________________sections (b) to (m), these provisions govern only decisions or actions occurring after that date.
Section 5. Investments may be Maintained as Received
Trust funds received by executors, trustees, guardians or conservators may be kept invested in the securities received by them, unless it is otherwise ordered by the Probate Court or unless the instrument under which such trust was created directs that a change of investments shall be made, and the fiduciaries thereof shall not be liable for any loss that may occur by depreciation of such securities.
Section 6. Fiduciary Powers Re: Increase in Capital Stock Assets of Estate
Whenever any fiduciary holds shares of the stock of any corporation as assets of the estate in his charge and there is an increase of the capital stock of any such corporation, such fiduciary may, with the consent of the Probate Court, either (1) subscribe for and take the shares of the increased capital stock to which such estate may be entitled or (2) sell and transfer to others the right to subscribe for such shares.
Section 7. Definitions
As used in Sections 7 to 19 of this Chapter, inclusive:
a. "Income Beneficiary" means the person to whom income is presently payable or for whom it is accumulated for distribution as income;
b. "Inventory Value" means the cost of property purchased by the trustee and the market value of other property at the time it became subject to the trust, but in the case of a testamentary trust the trustee may use any value finally determined for the purposes of an estate or inheritance tax;
c. "Remainderman" means the person entitled to principal, including income which has been accumulated and added to principal;
d. "Trustee" means an original trustee and any successor or added trustee.
Section 8. Duty of Trustee Re: Receipts and Expenditures
a. A trust shall be administered with due regard to the respective interests of income beneficiaries and remaindermen. A trust is so administered with respect to the allocation of receipts and expenditures if a receipt is credited or an expenditure is charged to income or principal or partly to each:
(1) in accordance with the terms of the trust instrument, notwithstanding contrary provisions of Sections 7 to 19 of this Chapter inclusive;
(2) in the absence of any contrary terms of the trust instrument, in accordance with the provisions of said Sections; or
(3) if neither of the preceding rules of administration is applicable, in accordance with what is reasonable and equitable in view of the interests of those entitled to income as well as of those entitled to principal, and in view of the manner in which persons of ordinary prudence, discretion and judgment would act in the management of their own affairs.
b. If the trust instrument gives the trustee discretion in crediting a receipt or charging an expenditure to income or principal or partly to each, no inference of imprudence or partiality arises from the fact that the trustee has made an allocation contrary to a provision of Sections 7 to 19 of this Chapter, inclusive.
Section 9. Income. Principal. Charges
a. Income is the return in money or property derived from the use of principal, including return received as: (1) rent of real or personal property, including sums received for cancellation or renewal of a lease; (2) interest on money lent, including sums received as consideration for the privilege of prepayment of principal except as provided in Section 13 of this Chapter on bond premium and bond discount; (3) income earned during administration of a decedent's estate as provided in Section 11 of this Chapter; (4) corporate distributions as provided in Section 12 of this Chapter; (5) accrued increment on bonds or other obligations issued at discount as provided in Section 13 of this Chapter; (6) receipts from business and farming operations as provided in Section 14 of this Chapter; (7) receipts from disposition of natural resources as provided in Sections 15 and 16 of this Chapter; (8) receipts from other principal subject to depletion as provided in Section 17 of this Chapter; (9) receipts from disposition of unproductive and under-productive property as provided in Section 18 of this Chapter.
b. Principal is the property which has been set aside by the owner or the person legally empowered so that it is held in trust eventually to be delivered to a remainderman while the return or use of the principal is in the meantime taken or received by or held for accumulation for an income beneficiary. Principal includes:
(1) consideration received by the trustee on the sale or other transfer of principal or on repayment of a loan or as a refund or replacement or change in the form of principal;
(2) proceeds of property taken on eminent domain proceedings;
(3) proceeds of insurance upon property forming part of the principal except proceeds of insurance upon a separate interest of an income beneficiary;
(4) stock dividends, receipts on liquidation of a corporation, and other corporate distributions as provided in Section 12 of this Chapter;
(5) receipts from the disposition of corporate securities as provided in Section 13 of this Chapter;
(6) royalties and other receipts from disposition of natural resources as provided in Sections 15 and 16 of this Chapter;
(7) receipts from other principal subject to depletion as provided in Section 17 of this Chapter;
(8) any profit resulting from any change in the form of principal except as provided in Section 18 of this Chapter on unproductive and under-productive property;
(9) receipts from disposition of unproductive and under-productive property as provided in Section 18 of this Chapter.
c. After determining income and principal in accordance with the terms of the trust instrument or of Sections 7 to 19 of this Chapter, inclusive, the trustee shall charge to income or principal expenses and other charges as provided in Section 19 of this Chapter.
Section 10. Right to Income. Apportionment of Income
a. An income beneficiary is entitled to income from the date specified in the trust instrument, or, if none is specified, from the date an asset becomes subject to the trust. In the case of an asset becoming subject to a trust by reason of a will, it becomes subject to the trust as of the date of the death of the testator even though there is an intervening period of administration of the testator's estate.
b. In the administration of a decedent's estate or an asset becoming subject to a trust by reason of a will,
(1) income receipts due but not paid at the date of death of the testator are principal;
(2) income receipts in the form of periodic payments other than corporate distributions to stockholders, including rent, interest, distributions from mutual funds and common trust funds or annuities, not due at the date of the death of the testator shall be treated as accruing from day to day. That portion of the receipt accruing before the date of death is principal, and the balance is income.
c. In all other cases, any income receipt from an income-producing asset is income even though the receipt was earned or accrued in whole or in part before the date when the asset became subject to the trust.
d. On termination of an income interest, the income beneficiary whose interest is terminated, or his estate, is entitled to
(1) income undistributed on the date of termination;
(2) income due but not paid to the trustee on the date of termination;
(3) income in the form of periodic payments other than corporate distributions to stockholders, including rent, interest, distributions from mutual funds and common trust funds or annuities, not due on the date of termination, accrued from day to day.
e. Corporate distributions to stockholders shall be treated as due on the day fixed by the corporation for determination of stockholders of record entitled to distribution or, if no date is fixed, on the date of declaration of the distribution by the corporation.
Section 11. Income Earned During Administration of Decedent's Estate
a. Unless the will otherwise provides and subject to subsection (b) of this Section, all expenses incurred in connection with the settlement of a decedent's estate, including debts, funeral expenses, estate taxes, penalties concerning taxes, family allowances unless otherwise ordered by the Probate Court, fees of attorneys and personal representatives, and court costs shall be charged against the principal of the estate.
b. Unless the will otherwise provides, income from the assets of a decedent's estate after the death of the testator and before distribution, including income from property used to discharge liabilities, shall be determined in accordance with the rules applicable to a trustee under Sections 7 to 19 of this Chapter, inclusive, and distributed as follows:
(1) To specific legatees and devisees, the income from the property bequeathed or devised to them respectively, less taxes, ordinary repairs, and other expenses of management and operation of the property, and an appropriate portion of interest accrued since the death of the testator and of taxes imposed on income, excluding taxes on capital gains, which accrue during the period of administration;
(2) to all legatees of pecuniary bequests not in trust, simple interest in the amount of 6% per year on the pecuniary bequest commencing one year from the date of death or, if later, one year from the date on which the legacy is payable;
(3) to all other legatees and devisees, the balance of the income, less the balance of taxes, ordinary repairs, and other expenses of management and operation of all property from which the estate is entitled to income, interest accrued since the death of the testator, and taxes imposed on income, excluding taxes on capital gains, which accrue during the period of administration, in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value; provided the amount of income earned during the further administration of the estate from and after the date of payment of any estate tax, inheritance tax, or other expenses of administration, which individually or cumulatively, after the last adjustment required hereunder, exceed ten thousand dollars shall be distributed to such beneficiaries in proportion to their respective interests in the undistributed assets of the estate after the making of such payment on the basis of the fair market value of such assets immediately after the making of such payment.
c. Income received by a trustee under subsection (b) shall be treated as income of the trust.
d. Income earned during the administration of the estate which is payable to a trust under subsection (b) of this subsection may be paid to the income beneficiary of the trust by the executor unless the payment of said income is at the discretion of the designated trustee, in which case, the payment may be made by the executor to such income beneficiary upon obtaining the written consent of the trustee.
Section 12. Corporate Distributions
a. Corporate distributions of shares of the distributing corporation, including distributions in the form of a stock split or stock dividend, are principal. A right to subscribe to shares or other securities issued by the distributing corporation accruing to stockholders on account of their stock ownership and the proceeds of any sale of the right are principal.
b. Except to the extent that the corporation indicates that some part of a corporate distribution is a settlement of preferred or guaranteed dividends accrued since the trustee became a stockholder or is in lieu of an ordinary cash dividend, a corporate distribution is principal if the distribution is pursuant to (1) a call of shares; (2) a merger, consolidation, reorganization, or other plan by which assets of the corporation are acquired by another corporation; or (3) a total or partial liquidation of the corporation, including any distribution which the corporation indicates is a distribution in total or partial liquidation or any distribution of assets, other than cash, pursuant to a court decree or final administrative order by a government agency ordering distribution of the particular assets.
c. Distributions made from ordinary income by a regulated investment company or by a trust qualifying and electing to be taxed under federal law as a real estate investment trust are income. All other distributions made by the company or trust, including distributions from capital gains, depreciation, or depletion, whether in the form of cash or an option to take new stock or cash or an option to purchase additional shares, are principal.
d. Except as provided in subsections (a), (b), and (c) of this Section, all corporate distributions are income, including cash dividends, distributions of or rights to subscribe to shares or securities or obligations of corporations other than the distributing corporation, and the proceeds of the rights or property distributions; provided, when a dividend is payable in shares or other securities or obligations of corporations other than the distributing corporation and the trustee determines that either the income beneficiaries or the remaindermen would profit unreasonably or inequitably at the expense of the other from the application of this Section, the trustee may apportion such dividend between income and principal or allocate the same in whole or part to income or principal in such manner and in such proportions as the trustee in its discretion shall deem reasonable and equitable in order to preserve the respective interests in the trust estate. Except as provided in subsections (b) and (c) of this Section, if the distributing corporation gives a stockholder an option to receive a distribution either in cash or in its own shares, the distribution chosen is income.
e. The trustee may rely upon any statement of the distributing corporation as to any fact relevant under any provision of Sections 7 to 19 of this Chapter, inclusive, concerning the source or character of dividends or distributions of corporate assets.
Section 13. Bond Premium and Discount
a. Bonds or other obligations for the payment of money are principal at their inventory value, except as provided in subjection (b) for discount bonds. No provision shall be made for amortization of bond premiums or for accumulation of discount. The proceeds of a sale, redemption or other disposition of bonds or other obligations are principal.
b. The increment in value of a bond or other obligation for the payment of money bearing no stated interest but payable or redeemable at maturity or at a future time at an amount in excess of the amount in consideration of which it was issued is income. If the income accrues pursuant to a fixed schedule of appreciation such income is distributable to the beneficiary at the time the increment occurs and the trustee may transfer the amount thereof from principal to income on each such date. Whenever unrealized increment is distributed as income but out of principal the principal shall be reimbursed from the income when realized.
Section 14. Business and Farming Operations
a. If a trustee uses any part of the principal in the continuance of a business of which the settlor was a sole proprietor or a partner, the net profits of the business, computed in accordance with generally accepted accounting principles for a comparable business, are income. If a loss results in any fiscal or calendar year, the loss falls on principal and shall not be carried into any other fiscal or calendar year for purposes of calculating net income.
b. Generally accepted accounting principles shall be used to determine income from an agricultural or farming operation, including the raising of animals or the operation of a nursery.
Section 15. Disposition of Natural Resources
a. If any part of the principal consists of a right to receive royalties, overriding or limited royalties, working interests, production payments, net profit interests, or other interests in minerals or other natural resources in, on or under land, the receipts from taking the natural resources from the land shall be allocated as follows:
(1) if received as rent on a lease or extension payments on a lease, the receipts are income.
(2) if received from a production payment, the receipts are income to the extent of any factor for interest or its equivalent provided in the governing instrument. There shall be allocated to principal the fraction of the balance of the receipts which the unrecovered cost of the production payment bears to the balance owed on the production payment, exclusive of any factor for interest or its equivalent. The receipts not allocated to principal are income.
(3) if received as a royalty, overriding or limited royalty, or bonus, or from a working, net profit, or any other interest in minerals or other natural resources, receipts not provided for in the preceding subdivisions of this Section shall be apportioned on a yearly basis in accordance with this subdivision whether or not any natural resource was being taken from the land at the time the trust was established. 27.5% of the gross receipts, but not to exceed 50% of the net receipts remaining after payment of all expenses, direct and indirect, computed without allowance for depletion, shall be added to principal as an allowance for depletion. The balance of the gross receipts, after payment therefrom of all expenses, direct and indirect, is income.
b. This Section does not apply to timber, water, soil, sod, dirt, turf, or mosses.
Section 16. Timber
If any part of the principal consists of land from which merchantable timber may be removed, the receipts from taking the timber from the land shall be allocated in accordance with subdivision (3) of subsection (a) of Section 8 of this Chapter.
Section 17. Other Property Subject to Depletion
Except as provided in Sections 15 and 16 of this Chapter, if any part of the principal consists of property subject to depletion, including leaseholds, patents, copyrights, royalty rights and rights to receive payments on a contract for deferred compensation, the receipts from such property shall be allocated in accordance with subdivision (3) of subsection (a) of Section 8 of this Chapter.
Section 18. Unproductive and Underproductive Property
a. An income beneficiary is entitled to a portion of the proceeds of sale of any part of principal as delayed income when the trust principal as a whole has not produced income as required under subdivision (3) of subsection (a) of Section 8 of this Chapter. The trustee shall allocate the proceeds of sale in accordance with subdivision (3) of subsection (a) of Section 8 of this Chapter.
b. An income beneficiary or his estate is entitled to delayed income under this Section as if it accrued from day to day during the time he was a beneficiary.
c. Nothing in this Section shall deprive the income beneficiary of any rights he may have under law to require the trustee to invest the trust property in accordance with the standards set forth in subdivision (3) of subsection (a) of Section 8 of this Chapter.
Section 19. Charges against Income and Principal
a. The following charges shall be made against income:
(1) ordinary expenses incurred in connection with the administration, management, or preservation of the trust property, including regularly recurring taxes assessed against any portion of the principal, water rates, premiums on insurance taken upon the interests of the income beneficiary, remainderman, or trustee, interest paid by the trustee, and ordinary repairs;
(2) one-half of court costs, attorney's fees, and other fees on periodic judicial accounting, unless the court directs otherwise;
(3) court costs, attorney's fees and other fees on other accountings or judicial proceedings if the matter primarily concerns the income interest, unless the court directs otherwise;
(4) one-half of the trustee's regular compensation, and one-half of all fees paid at least annually to banks, trust companies and registered investment advisers for investment advisory and custodial services, whether based on a percentage of principal or income, and other expenses reasonably incurred for current management of principal and application of income;
(5) any tax levied upon receipts defined as income under Sections 7 to 19 of this Chapter, inclusive, or the trust instrument and payable by the trustee; and if an estate or inheritance tax is levied in respect of a trust in which both an income beneficiary and a remainderman have an interest, any interest on the estate or inheritance tax that is apportioned to the trust.
b. If charges against income are of unusual amount, the trustee may by means of reserves or other reasonable means charge them over a reasonable period of time and withhold from distribution sufficient sums to regularize distributions.
c. The following charges shall be made against principal:
(1) Trustee's compensation and fees for investment advisory and custodial services not chargeable to income under subdivision (4) of subsection (a) of this Section, expenses reasonably incurred in connection with principal, Court costs and attorney's fees primarily concerning matters of principal, trustee's compensation computed on principal as an acceptance, distribution, or termination fee;
(2) charges not provided for in subsection (a), including the payments on principal of an indebtedness, including a mortgage amortized by periodic payments of principal, expenses for preparation of property for sale, and, unless the Court directs otherwise, expenses incurred in maintaining or defending any action to construe the trust or protect it or the property or assure the title of any trust property;
(3) extraordinary repairs or expenses incurred in making a capital improvement to principal, including special assessments;
(4) any tax levied upon profit, gain, or other receipts allocated to principal notwithstanding denomination of the tax as an income tax by the taxing authority;
(5) if an estate or inheritance tax is levied in respect of a trust in which both an income beneficiary and a remainderman have an interest, any amount apportioned to the trust, including penalties, even though the income beneficiary also has rights in the principal.
d. Regularly recurring charges payable from income shall be apportioned to the same extent and in the same manner that income is apportioned under Section 10 of this Chapter.
Section 20. Construction of Statutes in this Part
a. Definitions. As used in Sections 20 to 23 of this Chapter, inclusive,
(1) the term "fiduciary" means the one or more executors or administrators c.t.a. or administrators c.t.a., d.b.n. of the estate of a decedent, or the one or more trustees of a testamentary or inter vivos trust estate, or any successor or successors to the original fiduciary, or any substitute, or any ancillary fiduciary, whether corporate or individual and whether or not specifically named in the will or trust instrument, and includes the terms "co-fiduciary", "co-executor" and "co-trustee".
(2) the term "settlor" means the creator of an inter vivos trust, whether called settlor", "grantor", "donor", or "trustor" in the instrument.
(3) the terms "will" and "trust instrument" include, respectively, codicils to a will and amendments to a trust as the context may require.
(4) "QTIP" means qualified terminable interest property as defined under Section 2056(b)(7)(B) of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended.
b. Use of terminology. In all cases, the singular includes the plural of said terms and vice versa. Reference to any person by use of the neutral term "it" includes masculine and feminine and vice versa.
c. Incorporation of certain powers by reference in will or trust instrument. By an expressed intention of the testator or settlor so to do contained in a will or in an instrument in writing whereby a trust estate is created inter vivos, any one or more or all of the powers or any portion thereof enumerated in Section 21 of this Chapter, as they exist at the time of the signing of a will by the testator or at the time of the signing by the first settlor who signs a trust instrument, may be, by appropriate reference made thereto, incorporated in such will or other instrument, with the same effect as though such language were set forth verbatim in such will or other instrument. If a codicil or amendment to a trust instrument has been executed, the incorporated powers contained in such will or other instrument shall remain unchanged unless modified or otherwise altered by such codicil or amendment. Incorporation of one or more or all of the powers contained in said Section by reference to said Section shall be in addition to and not in limitation of other powers in the will or other instrument and of the common law powers or other statutory powers of the fiduciary. Any one or more or all of the additional powers or any portions thereof enumerated in Section 22 of this Chapter also may be incorporated by reference as therein provided but only to the extent they are individually referred to in such will or other instrument. In the event of a conflict between one or more of the powers contained in Sections 21 and 22 of this Chapter and the express terms of the will or other instrument, the terms of such will or other instrument shall govern. In the event of a conflict between one or more of the powers contained in Sections 21 and 22 of this Chapter, and any other provision of the general statutes, the power or powers contained in Sections 21 and 22 of this Chapter shall govern.
d. Limitation of power. No discretionary power or authority conferred upon a fiduciary as provided in Sections 21 to 23 of this Chapter, inclusive, may be exercised by such fiduciary in such a manner as, in the aggregate, to deprive the trust or the estate involved of an otherwise available tax exemption, deduction or credit, expressly including the marital and orphans deductions and the deduction for transfers for public, charitable and religious uses, except as otherwise prescribed by the testator or settlor, or operate to attract or impose a tax upon a settlor or estate of a testator or upon any other person as owner of any portion of the trust or estate involved. Notwithstanding any provisions contained in or incorporated by reference into a will or trust instrument, no person shall have a power to make any equitable adjustments affecting any qualified terminable interest property or a QTIP trust. For the purposes of this subsection, "equitable adjustments" means adjustments to trust corpus or income or both which involve a reallocation of assets from the account of one beneficiary to that of another to compensate for disproportionate sharing of a tax burden resulting from a tax election. The exercise of a power in violation of the restriction contained in this subsection shall render the action by the fiduciary or any other person with regard to that violation void. "Tax" means a federal, state, whether that of the Tribe, Connecticut, another state or territory of the United States, the District of Columbia or the Commonwealth of Puerto Rico, local, municipal or foreign, whether national, provincial, state, local or municipal, income, gift, estate, generation-skipping, inheritance, succession, accessions or other death tax, duty or excise imposed on the transfer of property at death or by gift. "Marital deduction" and "deduction for transfers for public, charitable and religious uses", shall have the same meaning and application as shall exist under the federal Internal Revenue Code in effect at the death of the testator or at the time a trust becomes irrevocable, as the case may be.
e. Construction of other types of instruments. Nothing herein shall be construed to prevent the incorporation of the powers enumerated in Sections 21 or 22 of this Chapter in any other kind of instrument or agreement.
Section 21. Powers
a. The following powers may be incorporated by reference as provided in Sections 20 and 23 of this Chapter:
(1) Retain Original Property. To retain for such time as the fiduciary shall deem advisable any property, real, personal or mixed, which the fiduciary may receive, even though the retention of such property by reason of its character, amount, proportion to the total estate or otherwise would not be appropriate for the fiduciary apart from this provision. The fiduciary shall not retain non-income-producing property in a trust intended to qualify for the marital deduction without the consent of the life beneficiary of said trust or his legal representative, including his guardian or conservator.
(2) Sell, Mortgage or Exchange Property. To sell, exchange, alter, assign, transfer, grant options to buy, sign real estate listing agreements; to convey, pledge, hypothecate; and to mortgage, lease and sublease, even beyond the period of the estate or any trust; to partition or otherwise dispose of any property or interest therein; to do any of such acts without an order of any court, at public or private sale or otherwise, upon such terms and conditions, including credit, and for such consideration as the fiduciary shall deem advisable; to transfer and convey the property or any interest therein, in fee simple absolute or otherwise free of all trusts. The receipts of the fiduciary for moneys or things paid or delivered shall be effective discharges therefrom to the persons paying or delivering the same and no one either dealing with the fiduciary or from whom the fiduciary shall receive any money, property or other credit shall be required to see to the application thereof or shall be under any duty to follow the proceeds or other consideration received by the fiduciary from such sale or exchange. No one dealing with the fiduciary, or with any real, personal or mixed property which is or was estate or trust property, shall be bound to ascertain or inquire as to the existence or occurrence of any event or purpose in or for which a sale is herein authorized or directed or otherwise as to the purpose or regularity of any acts of the fiduciary purporting to be done in pursuance of any other provisions or powers herein incorporated or granted.
(3) Invest and Reinvest. To invest and reinvest, as the fiduciary shall deem advisable, in stocks of any class, bonds, debentures, notes, mortgages or other securities as well as in investment trusts, mutual funds and common trust funds, to open accounts in any type of commercial or savings bank, savings and loan association, credit union or similar organization or company, whether within or without the state of Connecticut and to acquire by lease or purchase any interest in real property or real estate investment trusts whether such investment is in or outside the state of Connecticut or the United States and even though such investment shall not be of the character approved by applicable law but for this provision. Notwithstanding any other provisions to the contrary, neither a trustee of an irrevocable trust, intended to qualify for the federal gift tax exclusion as a gift of a present interest under Section 2503(b) or 2503(c) of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, nor the trustee of a trust providing for payment of all income therefrom to the life beneficiary, including a QTIP trust, may under any circumstances invest or reinvest in unproductive, under-productive or non-income-producing property, or acquire any life insurance, endowments or annuities unless explicitly so authorized in the trust instrument.
(4) Invest Without Diversification. To make investments which cause a greater proportion of the total property held by the fiduciary to be invested in investments of one kind than would be considered appropriate for the fiduciary apart from this provision.
(5) Exercise Stock Options. To exercise any stock options owned by the testator or settlor at his death or acquired by or held in any trust, to borrow money and pledge any assets, including stock acquired by the exercise thereof, to obtain funds for the exercise thereof, to retain any stock purchased by the exercise of such options for such time as the fiduciary deems advisable, and to exercise all other powers in respect of such stock as though such stock formed a part of the estate at the time of death or a part of any trust.
(6) Pay Taxes and Expenses. To pay taxes; to pay calls, assessments and any other sums chargeable or accruing against or on account of shares of stock, debentures or other corporate securities in the hands of a fiduciary, whenever such payment may be legally enforceable against the fiduciary or any property of the estate or trust, or if the fiduciary deems payment expedient and for the best interests of the estate or trust; to pay for repairs and other expenses incurred in the management, collection, care, administration and protection of the trust or estate including fiduciary compensation and attorneys' fees.
(7) Receive Additional Property. To receive additional property from any source and administer such additional property as a portion of the appropriate trust or estate under the management of the fiduciary, provided the fiduciary shall not be required to receive such property without the fiduciary's consent unless such property is devised or bequeathed to the fiduciary in its fiduciary capacity in which case the fiduciary must receive such property or resign.
(8) Borrow Money. To borrow money and to assume indebtedness for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the fiduciary shall deem advisable, including the powers of a corporate fiduciary to borrow from its own banking department, for the purpose of paying debts, taxes, administration expenses, or other charges against the estate or any trust, or any part thereof, and to mortgage, pledge or otherwise encumber such portion of the estate or any trust as may be required to secure such loan or loans, and to renew existing loans either as maker or endorser.
(9) Vote Shares. To vote shares of stock owned by the estate or owned by any trust stockholders' meetings in person or by special, limited, or general proxy, with or without power of substitution.
(10) Register in Name of Nominee. To hold any investment in the name of a nominee or in any form in which title will pass by delivery, but the fiduciary shall be liable for any act of the nominee in connection with the investment so held. Any corporation or its transfer agent may presume conclusively that the nominee is the actual owner of securities submitted for transfer.
(11) Use of Private Nominees. To form a general or limited partnership or partnerships under any name or names of the fiduciary's selection for the purpose of taking and holding title to all or any of the assets comprising the estate or trust property and for becoming the named beneficiary of any or all of the insurance policies therein; said partnership or partnerships shall have the power to deposit, withdraw, sell, loan, mortgage, lease, assign, convey, exchange, transfer or deal with said estate or trust property in all ways permitted to the fiduciary and to take any such action over the signature of only one partner or of the partnership itself; and any broker, bank, savings bank, savings and loan association, and any corporation or its transfer agent or registrar may presume conclusively that said partnership or partnerships are the actual owners of the bank deposits, savings and loan shares and securities registered in their names and submitted for transfer or registration.
(12) Take and Exercise Options, Rights and Privileges. To take options for acquisition of property, to exercise all options, rights, and privileges to convert stocks, bonds, debentures, notes, mortgages, or other property into other stocks, bonds, debentures, notes, mortgages, or other property; to subscribe for other or additional stocks, bonds, debentures, notes, mortgages, or other property; and to hold such stocks, bonds, debentures, notes, mortgages, or other property so acquired as investments of the estate or trust so long as the fiduciary shall deem advisable.
(13) Participate in Reorganizations. To unite with other owners of property similar to any which may be held at any time in the decedent's estate or in any trusts in carrying out any plan for the consolidation or merger, dissolution or liquidation, foreclosure, lease or sale of the property; incorporation or re-incorporation, acquisition, re-capitalization, reorganization or readjustment of the capital or financial structure of any corporation, company or association the securities of which may form any portion of an estate or trust; to become and serve as a member of a stockholders' or bondholders' protective committee; to deposit securities in accordance with any plan agreed upon; to pay any assessments, expenses, or sums of money that may be required for the protection or furtherance of the interest of the distributees of an estate or beneficiaries of any trust with reference to any such plan; and to receive as investments of any estate or any trust any securities issued as a result of the execution of such plan.
(14) Renew and Extend Obligations. To continue any obligation, whether secured or unsecured, upon and after maturity with a renewal or extension upon such terms as the fiduciary shall deem advisable, without regard to the value of the security, if any, at the time of such continuance, even though such continuance may extend beyond the period of the estate or of any trust.
(15) Foreclose and Bid in. To foreclose, as an incident to the collection of any bond, note or other obligation, any mortgage, deed of trust, or other lien securing such bond, note or other obligation, and to bid in the property at such foreclosure sale, or to acquire the property by deed from the mortgagor or obligor without foreclosure; and to retain the property so bid in or taken over without foreclosure.
(16) Insure. To carry such insurance coverage, including but not limited to public liability, fire, rent, title or casualty insurance for such hazards and in such amounts, either in stock companies or in mutual companies, as the fiduciary shall deem advisable. A fiduciary or a fiduciary's employee who is a director of any corporation, more than 19% of whose stock is held by the estate or any trust, may use estate or trust assets to purchase and pay premiums on insurance to indemnify himself from liability resulting from acting with conflicting interests and from other acts in his capacity as a director.
(17) Collect. To collect, receive and give receipts for rents, issues, profits, and income of an estate or trust.
(18) Litigate, Compromise or Abandon. To compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle claims in favor of or against the estate or trusts the fiduciary shall deem advisable, and the fiduciary's decision shall be conclusive between the fiduciary and the beneficiaries of the estate or trust in the absence of fraud, bad faith or gross negligence of the fiduciary. No beneficiary serving as a co-fiduciary and no settlor serving as a fiduciary or co-fiduciary may participate in any decision as to claims between him and the estate or trust. Any claim by a settlor or beneficiary serving as a co-fiduciary shall be determined only by the other co-fiduciary.
(19) Employ and Compensate Agents, etc. To employ and compensate persons deemed by the fiduciary needful to advise or assist in the proper settlement of the estate or administration of any trust including, but not limited to: servants, agents, accountants, brokers, attorneys-at-law, attorneys-in-fact, real estate managers, rental agents, realtors, appraisers, and investment counsel, custodians and other professional advisers as reasonably may be required or desired in managing, protecting and investing the estate or any trusts without liability for any neglect, omission, misconduct, or default of such person provided such person was selected and retained with due care on the part of the fiduciary. If investment counsel is selected, which at the time of selection has a reputation in its community for competence and fair dealing, its selection and retention shall be considered as having been made with due care, provided the fiduciary continues to retain such counsel only so long as such counsel maintains said reputation. Under said circumstances, the fiduciary shall have no investment responsibility whatever and may act without independent investigation upon the recommendations of any such person, without liability for any neglect, omission, misconduct, or default of such person.
(20) Acquire and Hold Property of Two or More Trusts Undivided. To acquire, receive, hold and retain the principal of several trusts created by a single instrument undivided until division shall become necessary in order to make a distribution; to hold, manage, invest, reinvest, and account for the several shares or parts of shares by appropriate entries in the fiduciary's books of account, and to allocate to each share or part of share its proportionate part of all receipts and expenses; provided, that the provisions of this subdivision shall not defer the vesting in possession of any share or part of share of the estate or trust.
(21) Distribute in Cash or Kind. To make distribution of assets of the estate or trust in kind or in cash, or partially in kind and partially in cash, in divided or undivided interests, provided shares may be composed differently and specific assets may be allocated to particular distributions; to make such distribution either upon final distribution or during one or more preliminary distributions, at the then current values, as the fiduciary finds to be most practicable and for the best interests of the distributees; and to make reasonable determinations of said values for the purpose of making distribution if there is more than one distributee thereof, which determination shall be binding upon the distributees, provided no settlor serving as a fiduciary of an irrevocable trust and no beneficiary serving as a fiduciary of any trust shall have such power.
(22) Pay to or for Minors or Incompetents. To make payments in money or in property, to or for a minor or incompetent in any one or more of the following ways:
(a) to such minor or incompetent directly, if the fiduciary in its sole and absolute discretion deems such payment advisable;
(b) to apply directly in payment for the support, maintenance, education, and medical, surgical, hospital, or other institutional care of such minor or incompetent;
(c) to the legal or natural guardian of such minor or conservator of such incompetent;
(d) to any other person, whether or not appointed guardian of the person or conservator by any court, who shall, in fact have the care and custody of the person of such minor or incompetent. The fiduciary shall not be under any duty to see to the application of the payments so made and the receipt by such person shall be full acquittance to the fiduciary.
(23) Determine Income and Principal Questions. To determine in accordance with applicable law, where not otherwise provided by Connecticut's Principal and Income Act, all questions with respect to the manner in which expenses and charges, including the fiduciary's compensation as such, are to be borne and receipts are to be credited as between principal and income.
(24) Capital Gain from Mutual Funds. The fiduciary is directed to allocate to principal all distributions representing capital gains received from the sale of securities held by regulated investment companies, real estate investment trusts or mutual funds owned by the trust.
(25) Manage Real Property.
(a) To improve, manage, protect, develop, acquire and make additions to, exchange, and abandon any real property or any interest therein;
(b) to dedicate to public use or, where legally permissible, to withdraw from such dedication, parks, streets, highways, or alleys;
(c) to subdivide or re-subdivide any real property;
(d) to borrow money for the purposes authorized by this subdivision for such periods of time and upon such terms and conditions as to rates, maturities and renewals as the fiduciary shall deem advisable and to mortgage or otherwise encumber any such property or part thereof, whether in possession or reversion;
(e) to lease or sublease any such property or part thereof to commence at the present or in the future, upon such terms and conditions, including options to renew or purchase, and for such period or periods of time as the fiduciary deems advisable, although such period or periods may extend beyond the duration of the trust or the administration of the estate involved;
(f) to make gravel, sand, oil, gas and other mineral leases, subleases, contracts, licenses, conveyances or grants of every nature and kind which are lawful in the jurisdiction in which such property lies or to employ an ancillary fiduciary or fiduciaries so to act;
(g) to manage and improve timber and forests on such property, to sell the timber and forest products, and to make grants, leases, and contracts with respect thereto;
(h) to make, modify, renew or extend leases and subleases as lessor or lessee;
(i) to employ agents to rent and collect rents;
(j) to grant and create easements and release, convey, or assign any right, title, or interest with respect to any easement on real property or part thereof and enter into party wall agreements;
(k) to erect, make repairs, replacements or improvements, structural or otherwise, or to renovate any building or other improvement on real property, and to alter, raze, remove or demolish any building or other improvement in whole or part;
(l) to survey, partition, and adjust boundaries; and to make plats of any real property; and
(m) to deal with any such property and every part thereof in all other ways and for such other purposes or considerations as would be lawful for any person owning the same.
(26) Deal with Other Trusts. In dealing with one or more other trusts, the fiduciary may sell property, real, personal or mixed to, or exchange property with, the trustee of any trust which the testator or the settlor or his spouse or any child of his has created, for such estates and upon such terms and conditions as to sale price, terms of payment, and security as the fiduciary shall deem advisable, and no fiduciary shall have any duty to follow the proceeds of any such sale, provided a fiduciary who is the settlor of an irrevocable trust or a fiduciary who is a spouse or child of the settlor or testator, whether or not the trust is irrevocable, shall not have such power, nor shall a fiduciary who is also a beneficiary of another trust have any such power to deal with the trust of which he is beneficiary.
(27) Make Advances. In its sole and absolute discretion and without in any way being required so to do, to advance money for the protection of the trust or estate, and for all expenses, losses and liabilities sustained in the administration of the trust or estate or because of the holding or ownership of any trust or estate assets, for which advances and any interest thereon the fiduciary shall have a lien on the assets of the trust or estate as against a beneficiary, and in its sole and absolute discretion and without in any way being required so to do, to advance, without provision for reimbursement, cash to the executor of the will or administrator of the estate of the testator or settlor or of his spouse if there are insufficient liquid assets to pay debts, taxes or administration expenses of the decedent, or of his deceased spouse.
(28) Maintain Reserves. To maintain reasonable reserves for depreciation, depletion, other than percentage depletion, and for amortization, and obsolescence.
(29) Make Contracts and Execute Instruments; No Duty of Inquiry. To make contracts and to execute instruments, under seal or otherwise, as may be necessary in the exercise of the powers herein granted. No party dealing with a fiduciary need inquire as to the existence or proper exercise of any power of said fiduciary, whether said power is granted directly or incorporated by reference.
(30) Perform Decedent's Executory Contracts. The fiduciary may in its discretion, complete performance of the decedent's valid executory contracts which, at the time of his death, had not been fully performed.
(31) Use of Property by Distributee. During the administration of the testator's estate, the fiduciary shall have the discretion to permit any beneficiary to have the use, possession, and enjoyment, without charge, of any real estate or tangible personal property devised, bequeathed or ultimately distributable to said person, so long as he lives, and if he dies before his right to said property becomes absolute or before said property is distributed to him, neither he nor his estate shall be held liable for any loss, destruction, damage, depreciation or waste of said property except through his fault or neglect. Neither the existence nor exercise of this power shall be deemed a constructive or actual distribution of the property to which it relates.
(32) Continue Business. To the extent and upon such terms and conditions and for such periods of time as the fiduciary shall deem necessary or advisable, to continue or participate in the operation of any business or other enterprise, whatever its form or organization, including but not limited to the power:
(a) effect incorporation, dissolution, merger, consolidation or sale of all or substantially all of the assets, either for cash or in exchange for stock or other securities, or to make other changes in the form of the organization of the business or enterprise, and to diminish, enlarge or change the scope of nature or nature of any business;
(b) to dispose of any interest therein or acquire the interest of others therein
(c) to contribute thereto or invest therein additional capital or to lend money thereto, in any such case upon such terms and conditions as the fiduciary shall approve from time to time except that a settlor of an irrevocable trust who is serving as a fiduciary thereof shall not have this power;
(d) to determine whether the liabilities incurred in the conduct of the business are to be chargeable solely to the part of the estate or trust set aside for use in the business or to the estate or trust as a whole, but such allocation must be done in accordance with applicable law;
(e) to control, direct and manage the business, delegate all or any part of the fiduciary's power to supervise and operate to such person or persons as the fiduciary may select, including any associate, partner, officer or employee of the business;
(f) to hire and discharge officers and employees, to fix their compensation and define their duties; and to employ, compensate and discharge agents, attorneys, consultants, accountants and such other representatives as the fiduciary may deem appropriate, including the right to employ any beneficiary, or individual fiduciary, in any of the foregoing capacities;
(g) to pledge other assets of the estate or trust as security for loans made to such business;
(h) to retain in the business such amount of the net earnings for working capital and other purposes of the business as the fiduciary may deem advisable in conformity with sound business practice, provided such retention does not impair any right of a beneficiary to receive all income from his share of any trust;
(i) to purchase, process and sell merchandise of every kind and description;
(j) to purchase and sell machinery and equipment, furniture and fixtures and supplies of all kinds;
(k) to sell or liquidate all or any part of any business at such time and price and upon such terms and conditions, including credit, as the fiduciary may determine, including a sale to any partner, officer or employee of the business or to any individual fiduciary as beneficiary hereunder, provided any such sale shall be for adequate and full consideration and no such sale shall be made to an individual fiduciary who is also a beneficiary thereunder;
(l) to invest other estate or trust funds in such business; and to loan funds from the trust to such business; and
(m) in all cases in which the fiduciary is required to furnish statements to beneficiaries or to file accounts in any Court or in any other public office, it shall not be necessary to itemize business receipts and disbursements and distributions of property but it shall be sufficient for the fiduciary to show in the account a single figure or consolidation of figures, and the fiduciary shall be permitted to account for money and property received from the business and any payments made to the business in lump sum without itemization.
(33) Appoint Ancillary Fiduciaries. The fiduciary may itself act or it may select one or more persons or corporations to act as an ancillary fiduciary or fiduciaries and, to the extent permitted by applicable law, all of the powers held by the domiciliary fiduciary are hereby granted to the ancillary fiduciary or fiduciaries and all costs of ancillary administration may be paid from either the domiciliary estate or trust or the ancillary estate or trust, as the fiduciary may decide in its sole discretion.
(34) Postpone Distribution and Accounting. To postpone distribution and accounting with respect to any trust for a year from the date of the termination of the trust, if in the judgment of the fiduciary such postponement shall be necessary or advisable.
(35)
(a) Alternate Valuation Date. The fiduciary may elect to value the estate for tax purposes at the values of its assets on the date of decedent's death or at those values on an estate tax valuation date other than the date of the decedent's death, whether or not such election increases or decreases the federal estate tax. No adjustments shall be required to be made between income and principal or between the property interests passing to any beneficiaries which may be affected as a result of such election.
(b) Administration and Other Expenses. To the extent permitted by law, the fiduciary may elect to claim certain administration expenses, casualty losses, medical and other expenses as deductions either on the income tax returns of the estate or of the decedent or on the federal estate tax return or partly on each. The fiduciary shall elect to claim from time to time such expenses as deductions on the particular tax returns which in the fiduciary's opinion should result in the lowest total taxes being paid by the estate and its beneficiaries, regardless of whether such expenses may be payable from the income or principal of such estate, and the fiduciary is not required to make adjustments between income or principal or between the property interests passing to any beneficiaries which may be affected on account of such election, except that:
(i) where one or more residuary legatees of a will containing a so-called pre-residuary marital deduction formula provision is a charitable organization, as defined in Section 501(c) of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, or any corresponding provision of applicable revenue laws, in effect at the date of the death of the testator of a will incorporating Sections 20 to 23 of this Chapter, inclusive, and
(ii) the fiduciary elects to treat such expenses in whole or in part as income tax deductions with the result that federal estate taxes paid from and chargeable to such principal are greater than if the contrary election had been made, an amount equal to the difference in such estate taxes shall be reimbursed to such principal from the income.
(c) Joint Returns. The fiduciary is specifically authorized but not required to execute and file a joint income tax return with the surviving spouse or his executor or administrator for the year of the decedent's death and for any prior years. The fiduciary is also authorized but not required to execute and file a gift tax return with the decedent's spouse or his executor or administrator, if any gift tax return is required of either the decedent or his spouse for any quarter in the year in which death occurs or for any quarter or year prior thereto. The fiduciary is authorized but not required to consent to treat any gifts made by such decedent's spouse as being made one-half by the decedent. The fiduciary may pay such income and gift taxes as are chargeable to the decedent and, in its discretion, may pay the entire amount of such taxes. The fiduciary shall incur no personal liability for any action taken by it in good faith in accordance with any of the foregoing authorizations.
(d) Installment Payment of Estate Taxes. The fiduciary is authorized in its discretion to elect to pay all or any part of the federal estate tax on the estate in installments under the provisions of Section 6166 of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, or any corresponding provision of applicable revenue laws
(e) Request for Extension of Time for Paying Estate Tax. The fiduciary is authorized in its discretion to request an extension of time for paying the federal estate tax, or any installment thereof on the estate or any amounts determined as a deficiency thereon under the provisions of Section 6161 or 6163 of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended.
(f) Election of Special Use Valuation. The fiduciary is authorized to make all elections with respect to valuations authorized by Section 2032A and related Sections of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended.
(g) Pension and Profit-Sharing Plans. To elect, either revocably or irrevocably, to receive death benefits and any other sums payable with respect to any pension and profit-sharing plans in a lump sum, in installments or as an annuity; to waive the benefit of any income averaging provisions available for distributions from pension and profit-sharing plans; to elect a different mode of distribution with respect to each applicable pension and profit-sharing plan. The term, "pension and profit-sharing plan", includes any pension, profit-sharing, thrift, stock purchase, or bonus plan as well as any so called "Keogh" plans and individual retirement accounts. A decedent's spouse, if acting as a fiduciary, shall take no part in the exercise of any election under any pension or profit-sharing plan.
(h) in making any of the elections authorized in subparagraph (d), (e), (f) or (g) of this subdivision, the fiduciary is authorized to take all action it deems necessary to implement said elections without incurring personal liability for any action taken or omitted by it in good faith under said authorization.
(36) Surrender of Stock for Redemption. The fiduciary is authorized in its discretion to surrender shares of stock in any corporation to the corporation issuing such stock for redemption, accepting in payment for the redeemed shares cash, notes or other property; and to vote the shares of stock of any corporation in favor of the redemption of shares of its stock included in determining the gross estate of a decedent, either for cash, notes or other property, including a redemption of such shares designed to provide funds for the payment of the decedent's death taxes, funeral expenses and administration expenses under the provisions of Section 303 of the federal Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, or any corresponding provision of applicable revenue laws and the fiduciary shall incur no personal liability for any action taken or omitted by it in good faith in accordance with any of the foregoing authorizations.
(37) Pooling Agreements and Voting Trusts. To enter into any kind of pooling agreements and voting trusts, even though such action may involve delegation of authority.
(38) Exculpation. The fiduciary is hereby exonerated from any liability resulting from its retention, sale or operation, whether due to losses, depreciation in value or actions taken or omitted to be taken with respect to any business, farm or real estate interests held in an estate or trust, nor shall the fiduciary be liable for any loss to or depreciation of any other estate or trust property, so long as it is acting in good faith in the management thereof and exercising reasonable care and diligence, but the fiduciary is not exonerated from his own bad faith, willful misconduct or gross negligence.
(39) Environmental Hazards. To take any action necessary to deal with or prevent problems created by environmental hazards, including, but not limited to, conducting assessments, taking any remedial action to contain, clean up or remove environmental hazards and expending estate or trust assets to accomplish any such action.
Section 22. Additional Powers
Any one or more or all of the following additional powers or any portion thereof may be incorporated by reference, as provided in Section 20 of this Chapter but only to the extent they are individually referred to in such will or other instrument:
(1) Stock of Fiduciary. To retain and invest and reinvest in and purchase any stock or other securities issued by the fiduciary in its individual capacity, or by any parent holding company of the fiduciary, including any stock dividends thereon and any securities issued in lieu thereof as the result of any re-capitalization, reorganization, consolidation or merger. Furthermore the fiduciary may exercise or sell any rights, or exercise part and sell part thereof, including rights to buy fractional shares, issued to it by reason of its ownership of any such security; and may retain and hold any security so acquired and vote and issue general or limited proxies to vote said stock.
(2) Buy Insurance and Annuities. To retain and to purchase insurance contracts, on the life of any beneficiary or of any person in whom a beneficiary has an insurable interest, or annuity contracts for any beneficiary and to pay the premiums thereon out of such beneficiary's portion of principal or income as the fiduciary, in its discretion, shall determine.
(3) Invest in Partnerships, etc. To retain, invest and reinvest in partnerships, joint ventures, leases, real estate syndicates, small business investment companies and hedge funds.
(4) Speculative Assets. To retain, trade and speculate in any real, personal or mixed property as the fiduciary shall deem advisable, wherever situated, including but not limited to:
(a) Any one or more or all commodities and commodity options regularly traded on exchanges in or outside the United States, in either spot or futures contracts, claims, straddles, spreads or any other type of commodity contract, whether long or short;
(b) puts, calls, straddles and options in any domestic or foreign securities and short sales of such contracts and of securities;
(c) interests in oil, gas, coal, gravel, sand, timber, sulfur, precious and semiprecious stones, minerals, metals and their ores, including but not limited to iron, aluminum, copper, rhodium, palladium, platinum, radium, uranium and gold and silver bullion, bars, bricks and coins, and any other mineral and timber rights, royalties, leases and payments, and interests in computer hardware and software;
(d) any interests in breeding of dairy cattle, horses, hogs, sheep, dogs, cats or other animals;
(e) postage and revenue stamps, postal covers, coins, jewelry, rare books, paintings, etchings, statues, sculptures, antiques, curios, antique firearms and edged weapons, and other collectible items and art objects;
(f) aircraft, ships, railroad locomotives, rolling stock, buses, antique automobiles and other vehicles;
(g) foreign currencies and United States Treasury bills including future contracts in such assets, whether long or short.
(5) Oil and Gas Interests. To have power with respect to oil, natural gas, minerals, and all other natural resources and rights to any interests therein, together with all equipment rights pertaining thereto, including oil and gas royalties, leases, payments, or other oil and gas interests of any character, whether owned in fee, as lessee, lessor, licensee, concessionaire or otherwise, either alone or jointly with others as partner, joint tenant, or joint venturer or in any other non-corporate manner, to:
(a) make oil, gas and mineral leases or subleases;
(b) pay delayed rents, lease bonuses, royalties, overriding royalties, taxes, assessments, and all other charges;
(c) sell, lease, exchange, mortgage, pledge or otherwise hypothecate any or all of such rights and interests;
(d) surrender or abandon, with or without consideration, any or all of such rights and interests;
(e) make farm-out, pooling, repressuration and unitization agreements;
(f) make reservations or impose conditions on the transfer of any such rights or interests;
(g) employ the most advantageous business form in which properly to exploit such rights and interests, whether as corporations, general or limited partnerships, mining partnerships, joint ventures, co-tenancies, or otherwise;
(h) drill, test, explore, mine, develop and otherwise exploit any and all such rights and interests;
(i) produce, process, sell or exchange all products recovered through the exploitation of such rights and interests, and to enter into contracts and agreements for or in respect of the installation or operation of absorption, reprocessing or other processing plants;
(j) carry any or all such interests in the name or names of a nominee or nominees;
(k) delegate, to the extent permitted by law, any or all of the powers set forth herein to the operator of such property; and
(l) employ personnel, rent office space, buy or lease office equipment, contract and pay for geological surveys and studies, procure appraisals, and generally to conduct and engage in any and all activities incident to the foregoing powers, with full power to borrow and pledge in order to finance such activities. The fiduciary shall have the right to rely on the judgment and recommendations of the operators of such property and need not make an independent investigation before acting on their reasonable recommendations.
(6) Form Corporation or Other Entity. To form a corporation or other entity under the laws of any jurisdiction and to transfer, assign, and convey to such corporation or entity all or any part of the estate or of any trust property in exchange for the stock, securities or obligations of any such corporation or entity, and to continue to hold such stock, securities and obligations.
(7) Fiduciary May Become Director or Officer. To vote for any individual fiduciary or any employee, officer or director of any corporate fiduciary, to be a director, officer, or both, of any corporation or small business investment company in which the estate or trust may be interested and to belong to any committee relating in any way to such corporation or company; and to serve as such director, officer, committee member, or any or all of them, and receive proper remuneration for such services, and to exercise its discretion with respect to all matters concerning the affairs of such corporation or company, and to consent to corporate or partnership sales, exchanges, leases, mortgages and encumbrances, without in any way being accountable for any such acts to any beneficiaries.
(8) Operate Farm. To continue any agricultural operation received by the fiduciary pursuant to the will or other instrument and to do any and all things deemed advisable by the fiduciary in the management and maintenance of any farm, which term includes, but is not limited to, a farm, garden, orchard, ranch, timber tract or dairy; and to do any and all things concerning the production and marketing of crops and dairy, poultry, livestock, orchard and forest products including but not limited to the following powers:
(a) to operate the farm with hired labor, tenants or sharecroppers;
(b) to lease or rent the farm for cash or for a share of the crops;
(c) to purchase or otherwise acquire farm machinery and equipment and livestock;
(d) to undertake the construction, repairs and improvements to farm buildings of all kinds needed in the fiduciary's judgment, for the operation of the farm;
(e) to make or obtain loans or advances at the prevailing rate or rates of interest for farm purposes such as for production, harvesting, or marketing, or for the construction, repair, or improvement of farm building, or for the purchase of farm machinery or equipment or livestock;
(f) to employ approved soil conservation practices in order to conserve, improve, and maintain the fertility and productivity of the soil;
(g) to protect, manage and improve the timber and forest on the farm and sell the timber and fore