72-34-423. Allocation between principal and income -- impartial exercise of discretion. (1) In allocating receipts and disbursements to or between principal and income and with respect to any other matter within the scope of this part, a fiduciary:

(a) shall administer a trust or decedent's estate in accordance with the trust or the will, even if there is a different provision in this part;

(b) may administer a trust or decedent's estate by the exercise of a discretionary power of administration given to the fiduciary by the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this part and no inference that the fiduciary has improperly exercised the discretion arises from the fact that the fiduciary has made an allocation contrary to a provision of this part;

(c) shall administer a trust or decedent's estate in accordance with this part if the trust or the will does not contain a different provision or does not give the fiduciary a discretionary power of administration; and

(d) shall add a receipt or charge a disbursement to principal to the extent that the trust or the will and this part do not provide a rule for allocating the receipt or disbursement to or between principal and income.

(2) In exercising a discretionary power of administration regarding a matter within the scope of this part, whether granted by a trust, a will, or this part, including the trustee's power to adjust under 72-34-424(1), the fiduciary shall administer the trust or decedent's estate impartially, except to the extent that the trust or the will expresses an intention that the fiduciary shall or may favor one or more of the beneficiaries. The exercise of discretion in accordance with this part is presumed to be fair and reasonable to all beneficiaries.

History: En. Sec. 3, Ch. 506, L. 2003.