Effective 28 Aug 2018

456.8-808. Powers to direct — trust protector, powers, limitations. — 1. While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust.

2. A trust instrument may provide for one or more persons, not then serving as a trustee and not the settlor or a beneficiary, to be given any powers over the trust as expressly granted in the trust instrument. Any such person may be identified and appointed as a trust protector or similar term. Whenever a trust instrument names, appoints, authorizes, or otherwise designates a trust protector, the trust shall be deemed a directed trust.

3. A trust protector appointed in the trust instrument shall have only the powers granted to the trust protector by the express terms of the trust instrument, and a trust protector is only authorized to act within the scope of the authority expressly granted in the trust instrument. Without limiting the authority of the settlor to grant powers to a trust protector, the express powers that may be granted include, but are not limited to, the following:

(1) Remove and appoint a trustee or a trust protector or name a successor trustee or trust protector;

(2) Modify or amend the trust instrument to:

(a) Achieve favorable tax status or respond to changes in the Internal Revenue Code or state law, or the rulings and regulations under such code or law;

(b) Reflect legal changes that affect trust administration;

(c) Correct errors or ambiguities that might otherwise require court construction; or

(d) Correct a drafting error that defeats a grantor's intent;

(3) Increase, decrease, modify, or restrict the interests of the beneficiary or beneficiaries of the trust;

(4) Terminate the trust in favor of the beneficiary or beneficiaries of the trust;

(5) Change the applicable law governing the trust and the trust situs; or

(6) Such other powers as are expressly granted to the trust protector in the trust instrument.

4. Notwithstanding any provision in the trust instrument to the contrary, a trust protector shall have no power to modify a trust to:

(1) Remove a requirement from a trust created to meet the requirements of 42 U.S.C. Section 1396p(d)(4) to pay back a governmental entity for benefits provided to the permissible beneficiary of the trust at the death of that beneficiary; or

(2) Reduce or eliminate an income interest of the income beneficiary of any of the following types of trusts:

(a) A trust for which a marital deduction has been taken for federal tax purposes under Section 2056 or 2523 of the Internal Revenue Code or for state tax purposes under any comparable provision of applicable state law, during the life of the settlor's spouse;

(b) A charitable remainder trust under Section 664 of the Internal Revenue Code, during the life of the noncharitable beneficiary;

(c) A grantor retained annuity trust under Section 2702 of the Internal Revenue Code, during any period in which the settlor is a beneficiary; or

(d) A trust for which an election as a qualified Sub-Chapter S Trust under Section 1361(d) of the Internal Revenue Code is currently in place.

5. Except to the extent otherwise provided in a trust instrument specifically referring to this subsection, the trust protector shall not exercise a power in a way that would result in a taxable gift for federal gift tax purposes or cause the inclusion of any assets of the trust in the trust protector's gross estate for federal estate tax purposes.

6. Except to the extent otherwise provided in the trust instrument and in subsection 7 of this section, and notwithstanding any provision of sections 456.1-101 to 456.11-1106 to the contrary:

(1) A trust protector shall act in a fiduciary capacity in carrying out the powers granted to the trust protector in the trust instrument, and shall have such duties to the beneficiaries, the settlor, or the trust as set forth in the trust instrument, provided that the trust instrument may provide that the trust protector shall act in a nonfiduciary capacity. A trust protector is not a trustee, and is not liable or accountable as a trustee when performing or declining to perform the express powers given to the trust protector in the trust instrument. A trust protector is not liable for the acts or omissions of any fiduciary or beneficiary under the trust instrument;

(2) A trust protector is exonerated from any and all liability for the trust protector's acts or omissions, or arising from any exercise or nonexercise of the powers expressly conferred on the trust protector in the trust instrument, unless it is established by a preponderance of the evidence that the acts or omissions of the trust protector were done or omitted in breach of the trust protector's duty, in bad faith or with reckless indifference;

(3) A trust protector is authorized to exercise the express powers granted in the trust instrument at any time and from time to time after the trust protector acquires knowledge of their appointment as trust protector and of the powers granted. The trust protector may take any action, judicial or otherwise, necessary to carry out the duties given to the trust protector in the trust instrument;

(4) A trust protector is entitled to receive, from the assets of the trust for which the trust protector is acting, reasonable compensation, and reimbursement of the reasonable costs and expenses incurred, in determining whether to carry out, and in carrying out, the express powers given to the trust protector in the trust instrument;

(5) A trust protector is entitled to receive, from the assets of the trust for which the trust protector is acting, reimbursement of the reasonable costs and expenses, including attorney's fees, of defending any claim made against the trust protector arising from the acts or omissions of the trust protector acting in that capacity unless it is established by clear and convincing evidence that the trust protector was acting in bad faith or with reckless indifference; and

(6) The express powers granted in the trust instrument shall not be exercised by the trust protector for the trust protector's own personal benefit.

7. If a trust protector is granted a power in the trust instrument to direct, consent to, or disapprove a trustee's actual or proposed investment decision, distribution decision, or other decision of the trustee required to be performed under applicable trust law in carrying out the duties of the trustee in administering the trust, then only with respect to such power, excluding the powers identified in subsection 3 of this section, the trust protector shall have the same duties and liabilities as if serving as a trustee under the trust instrument unless the trust instrument expressly provides otherwise. In carrying out any written directions given to the trustee by the trust protector concerning actual or proposed investment decisions, the trustee shall not be subject to the provisions of sections 469.900 to 469.913. For purposes of this subsection, "investment decisions" means, with respect to any investment, decisions to retain, purchase, sell, exchange, tender, or otherwise engage in transactions affecting the ownership of investments or rights therein and, with respect to nonpublicly traded investments, the valuation thereof.

8. Any trustee of a directed trust shall not be accountable under the law or equity for any act or omission of a trust protector and shall stand absolved from liability for executing the decisions or instructions from a trust protector or for monitoring the actions or inactions of a trust protector. A trustee shall take reasonable steps to facilitate the activity of a trust protector in a directed trust. A trustee shall carry out the written directions given to the trustee by a trust protector acting within the scope of the powers expressly granted to the trust protector in the trust instrument. Except as otherwise provided in the trust instrument, the trustee shall not be liable for any loss resulting directly or indirectly from any act taken or omitted as a result of the written direction of the trust protector or the failure of the trust protector to provide consent. Except as otherwise provided in the trust instrument, the trustee shall have no duty to monitor the conduct of the trust protector, provide advice to or consult with the trust protector, or communicate with or warn or apprise any beneficiary concerning instances in which the trustee would or might have exercised the trustee's own discretion in a manner different from the manner directed by the trust protector. Except as otherwise provided in the trust instrument, any actions taken by the trustee at the trust protector's direction shall be deemed to be administrative actions taken by the trustee solely to allow the trustee to carry out the instructions of the trust protector and shall not be deemed to constitute an act by the trustee to monitor the trust protector or otherwise participate in actions within the scope of the trust protector's authority. Whenever a directed trust reserves to a person or vests in an advisory or investment committee authority to direct the making or retention of any investment, to the exclusion of the trustee or trustees, the excluded trustee or trustees shall not be liable, individually or as a trustee, for any loss resulting from the making or retention of any investment pursuant to such direction.

9. Except to the extent otherwise expressly provided in the trust instrument, the trust protector shall be entitled to receive information regarding the administration of the trust as follows:

(1) Upon the request of the trust protector, unless unreasonable under the circumstances, the trustee shall promptly provide to the trust protector any and all information related to the trust that may relate to the exercise or nonexercise of a power expressly granted to the trust protector in the trust instrument. The trustee has no obligation to provide any information to the trust protector except to the extent a trust protector requests information under this section;

(2) The request of the trust protector for information under this section shall be with respect to a single trust that is sufficiently identified to enable the trustee to locate the records of the trust; and

(3) If the trustee is bound by any confidentiality restrictions with respect to an asset of a trust, a trust protector who requests information under this section about such asset shall agree to be bound by the confidentiality restrictions that bind the trustee before receiving such information from the trustee.

10. A trust protector may resign by giving thirty days' written notice to the trustee and any successor trust protector. A successor trust protector, if any, shall have all the powers expressly granted in the trust instrument to the resigning trust protector unless such powers are expressly modified for the successor trust protector.

11. A trust protector of a trust having its principal place of administration in this state submits personally to the jurisdiction of the courts of this state during any period that the principal place of administration of the trust is located in this state and the trust protector is serving in such capacity. The trust instrument may also provide that a trust protector is subject to the personal jurisdiction of the courts of this state as a condition of appointment.

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(L. 2004 H.B. 1511, A.L. 2012 S.B. 628, A.L. 2018 H.B. 1250)