A. During the period that a trust is a total return trust, the trustee shall administer the trust in accordance with the provisions of this section unless otherwise expressly provided by the terms of the trust.

B. The trustee shall invest the trust assets seeking a total return without regard to whether the return is from income or appreciation of principal.

C. The trustee shall make income distributions in accordance with the governing instrument subject to the provisions of this section.

D. The distribution percentage for any trust converted to a total return trust by a trustee in accordance with Subsection A of Section 46-3A-105 NMSA 1978 shall be four percent, unless a different percentage has been determined in an agreement made pursuant to Subsection B of Section 46-3A-105 NMSA 1978 or ordered by the court pursuant to Subsection C of Section 46-3A-105 NMSA 1978.

E. The trustee shall pay to a beneficiary in the case of an underpayment within a reasonable time, and shall recover from a beneficiary in the case of an overpayment, either by repayment by the beneficiary or by withholding from future distributions to the beneficiary:

(1) an amount equal to the difference between the amount properly payable and the amount actually paid; and

(2) interest compounded annually at a rate per annum equal to the distribution percentage in the year or years during which the underpayment or overpayment occurs; provided that accrual of interest may not commence until the beginning of the trust year following the year in which the underpayment or overpayment occurs.

F. As used in Sections 46-3A-105 through 46-3A-113 NMSA 1978:

(1) "income" as the term appears in the governing instrument means the distribution amount;

(2) "distribution amount" means the annual amount equal to the distribution percentage multiplied by the average net fair market value of the trust's assets; and

(3) "average net fair market value of the trust's assets" means the net fair market value of the trust's assets averaged over the lesser of the three preceding years or the period during which the trust has been in existence.

History: Laws 2005, ch. 329, § 4.

Effective dates. — Laws 2005, ch. 329, § 12 made the act effective July 1, 2005.