093_SB0077

 
                                     LRB093 02133 DRJ 03768 b

 1        AN ACT concerning trusts.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The  Trusts  and  Trustees Act is amended by
 5    changing Section 5.3 as follows:

 6        (760 ILCS 5/5.3)
 7        Sec. 5.3.  Total return trusts.
 8        (a)  Conversion by trustee. A trustee may convert a trust
 9    to a total return trust as described in this Section  if  all
10    of the following apply:
11             (1)  The trust describes the amount that may or must
12        be  distributed  to  a  beneficiary  by  referring to the
13        trust's  income,  and   the   trustee   determines   that
14        conversion  to  a  total  return  trust  will  enable the
15        trustee to better carry out the purposes of the trust and
16        the  conversion  is  in  the  best   interests   of   the
17        beneficiaries;
18             (2)  conversion  to  a  total return trust means the
19        trustee will invest and manage  trust  assets  seeking  a
20        total  return  without  regard  to whether that return is
21        from income or appreciation of principal, and  will  make
22        distributions  in  accordance  with  this Section (such a
23        trust is called a "total return trust" in this Section);
24             (3)  the trustee sends a written notice, which  must
25        meet   the  requirements  of  subsection  (a-5),  of  the
26        trustee's decision to convert the trust to a total return
27        trust, specifying a prospective effective  date  for  the
28        conversion  and  including a copy of this Section, to the
29        following beneficiaries, determined as of  the  date  the
30        notice  is sent and assuming nonexercise of all powers of
31        appointment:
 
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 1                  (A)  all of the legally competent beneficiaries
 2             who are currently receiving or eligible  to  receive
 3             income from the trust; and
 4                  (B)  all of the legally competent beneficiaries
 5             who  would  receive  or  be  eligible  to  receive a
 6             distribution of principal or income if  the  current
 7             interests  of  beneficiaries  currently receiving or
 8             eligible to receive income ended (the  beneficiaries
 9             described  in  this subparagraph (B) are hereinafter
10             referred to as "notice beneficiaries");
11             (4)  there are one or more legally competent  income
12        beneficiaries under subdivision (3)(A) of this subsection
13        (a)   and   one   or  more  legally  competent  remainder
14        beneficiaries under subdivision (3)(B) of this subsection
15        (a), determined as of the date of sending the notice;
16             (5)  a notice no beneficiary fails to object objects
17        to the conversion to a total return trust  in  a  writing
18        delivered  to the trustee within 60 days after the notice
19        is sent; and
20             (6)  the  trustee  has  signed  acknowledgments   of
21        receipt  confirming  that  notice  was  received  by each
22        beneficiary required to be sent notice under  subdivision
23        (3) of this subsection (a).
24        (a-5)  The  written  notice  required  under  subdivision
25    (a)(3)  of  this  Section must include a statement of how the
26    trustee anticipates the total trust will operate,  specify  a
27    prospective  date, which shall be no later than the beginning
28    of the second year of the trust following the date of notice,
29    and include a copy of this Section.
30        (b)  Conversion  by  agreement.  Conversion  to  a  total
31    return trust may be made by agreement between a  trustee  and
32    all  the primary beneficiaries of the trust under the virtual
33    representation provisions of Section  16.1  of  this  Act  if
34    those  provisions  otherwise apply. The agreement may include
 
                            -3-      LRB093 02133 DRJ 03768 b
 1    any actions a court could properly order under subsection (g)
 2    of  this  Section;  however,  any   distribution   percentage
 3    determined  by  the  agreement  may  not  be less than 3% nor
 4    greater than 5%.
 5        (c)  Conversion or reconversion by court.
 6             (1)  The  trustee  may  for  any  reason  elect   to
 7        petition  the court to order conversion to a total return
 8        trust,  including  without  limitation  the  reason  that
 9        conversion under subsection (a) is unavailable because:
10                  (A)  a notice beneficiary timely objects to the
11             conversion to a total return trust;
12                  (B)  there    are    no    legally    competent
13             beneficiaries described  in  subdivision  (3)(A)  of
14             subsection (a); or
15                  (C)  there    are    no    legally    competent
16             beneficiaries  described  in  subdivision  (3)(B) of
17             subsection (a).
18             (2)  A  beneficiary  may  request  the  trustee   to
19        convert   to   a   total   return  trust  or  adjust  the
20        distribution percentage. If the trustee declines or fails
21        to act within 60 days 6 months after receiving a  written
22        request  to do so, the beneficiary may petition the court
23        to order the conversion or adjustment.
24             (3)  The   trustee   may    petition    the    court
25        prospectively  to  reconvert from a total return trust or
26        adjust  the  distribution  percentage  if   the   trustee
27        determines  that  the  reconversion  or  adjustment  will
28        enable  the  trustee  to better carry out the purposes of
29        the trust. A  beneficiary  may  request  the  trustee  to
30        petition  the  court  prospectively  to  reconvert from a
31        total return trust or adjust the distribution percentage.
32        If the trustee declines or fails to act within 60 days  6
33        months  after  receiving  a written request to do so, the
34        beneficiary  may  petition  the  court   to   order   the
 
                            -4-      LRB093 02133 DRJ 03768 b
 1        reconversion or adjustment.
 2             (4)  In  a judicial proceeding under this subsection
 3        (c), the trustee may, but need not, present the trustee's
 4        opinions and  reasons  (A)  for  supporting  or  opposing
 5        conversion  to (or reconversion from or adjustment of the
 6        distribution  percentage  of)  a  total   return   trust,
 7        including  whether  the  trustee  believes conversion (or
 8        reconversion   or   adjustment   of   the    distribution
 9        percentage)  would enable the trustee to better carry out
10        the purposes of  the  trust,  and  (B)  about  any  other
11        matters   relevant   to   the   proposed  conversion  (or
12        reconversion   or   adjustment   of   the    distribution
13        percentage).  A trustee's actions in accordance with this
14        subsection  (c)  shall  not   be   deemed   improper   or
15        inconsistent  with  the  trustee's  duty  of impartiality
16        unless the court finds from all  the  evidence  that  the
17        trustee  acted in bad faith.  No inference that a trustee
18        previously exercised his or her investment  authority  or
19        breached  his  or  her judiciary impartiality shall arise
20        from a trustee filing a petition to  convert,  reconvert,
21        or adjust the distribution percentage.
22             (5)  The   court   shall  order  conversion  to  (or
23        reconversion prospectively  from  or  adjustment  of  the
24        distribution  percentage  of) a total return trust if the
25        court determines that the conversion (or reconversion  or
26        adjustment  of  the  distribution percentage) will enable
27        the trustee to better carry out the purposes of the trust
28        and the conversion (or reconversion or adjustment of  the
29        distribution  percentage) is in the best interests of the
30        beneficiaries.
31             (6)  Notwithstanding any  other  provision  of  this
32        Section,  a  trustee  has no duty to inform beneficiaries
33        about the availability of this Section and has no duty to
34        review the trust to determine whether any  action  should
 
                            -5-      LRB093 02133 DRJ 03768 b
 1        be  taken under this Section unless requested to do so in
 2        writing by a notice beneficiary described in  subdivision
 3        (3) of subsection (a).
 4        (d)  Post  conversion.  While  a  trust is a total return
 5    trust, all of the following shall apply to the trust:
 6             (1)  the trustee shall make income distributions  in
 7        accordance  with  the governing instrument subject to the
 8        provisions of this Section;
 9             (2)  the term "income" in the  governing  instrument
10        means  an annual amount (the "distribution amount") equal
11        to a percentage (the "distribution  percentage")  of  the
12        net  fair market value of the trust's assets, whether the
13        assets are  considered  income  or  principal  under  the
14        Principal and Income Act, averaged over the lesser of:
15                  (i)  the 3 preceding years; or
16                  (ii)  the  period  during  which  the trust has
17             been in existence;
18             (3)  the  distribution  percentage  for  any   trust
19        converted  to  a  total  return  trust  by  a  trustee in
20        accordance with subsection (a) shall be 4%; and
21             (4)  the trustee shall pay to a beneficiary (in  the
22        case  of  an  underpayment)  and  shall  recover  from  a
23        beneficiary  (in  the  case  of an overpayment) an amount
24        equal to  the  difference  between  the  amount  properly
25        payable  and  the  amount  actually  paid,  plus interest
26        compounded annually at a rate  per  annum  equal  to  the
27        distribution  percentage  in  the year or years while the
28        underpayment or overpayment exists.
29        (e)  Administration.  The  trustee,  in   the   trustee's
30    discretion,  may  determine  any  of the following matters in
31    administering a total return trust as the trustee  from  time
32    to  time  determines  necessary  or  helpful  for  the proper
33    functioning of the trust:
34             (1)  the effective date of a conversion to  a  total
 
                            -6-      LRB093 02133 DRJ 03768 b
 1        return trust;
 2             (2)  the manner of prorating the distribution amount
 3        for  a  short  year  in  which  a  beneficiary's interest
 4        commences or ceases;
 5             (3)  whether distributions are made in  cash  or  in
 6        kind;
 7             (4)  the   manner   of   adjusting   valuations  and
 8        calculations of the distribution amount  to  account  for
 9        other payments from or contributions to the trust;
10             (5)  whether to value the trust's assets annually or
11        more frequently;
12             (6)  what  valuation  dates  and  how many valuation
13        dates to use;
14             (7)  valuation decisions about any asset  for  which
15        there is no readily available market value, including:
16                  (A)  how frequently to value such an asset;
17                  (B)  whether   and   how   often  to  engage  a
18             professional appraiser to value such an asset; and
19                  (C)  whether to exclude the value  of  such  an
20             asset  from the net fair market value of the trust's
21             assets under  subdivision  (d)(2)  for  purposes  of
22             determining  the distribution amount. Any such asset
23             so excluded is referred to as an "excluded asset" in
24             this  subsection  (e),   and   the   trustee   shall
25             distribute any net income received from the excluded
26             asset  as  provided for in the governing instrument,
27             subject to the following principles:
28                       (i)  unless the trustee  determines  there
29                  are   compelling   reasons   to   the  contrary
30                  considering all relevant factors including  the
31                  best   interests   of  the  beneficiaries,  the
32                  trustee shall treat each asset for which  there
33                  is  no  readily  available  market  value as an
34                  excluded asset;
 
                            -7-      LRB093 02133 DRJ 03768 b
 1                       (ii)  if  tangible  personal  property  or
 2                  real property is possessed  or  occupied  by  a
 3                  beneficiary,  the  trustee  shall  not limit or
 4                  restrict any right of the  beneficiary  to  use
 5                  the  property  in accordance with the governing
 6                  instrument whether or not  the  trustee  treats
 7                  the property as an excluded asset;
 8                       (iii)  examples  of assets for which there
 9                  is a readily available  market  value  include:
10                  cash  and  cash equivalents; stocks, bonds, and
11                  other  securities  and  instruments  for  which
12                  there is  an  established  market  on  a  stock
13                  exchange,  in  an  over-the-counter  market, or
14                  otherwise; and  any  other  property  that  can
15                  reasonably  be  expected  to be sold within one
16                  week  of   the   decision   to   sell   without
17                  extraordinary efforts by the seller;
18                       (iv)  examples  of  assets for which there
19                  is no readily available market  value  include:
20                  stocks,   bonds,   and   other  securities  and
21                  instruments for which there is  no  established
22                  market    on    a   stock   exchange,   in   an
23                  over-the-counter  market,  or  otherwise;  real
24                  property;  tangible  personal   property;   and
25                  artwork and other collectibles; and
26             (8)  any other administrative matters as the trustee
27        determines   necessary   or   helpful   for   the  proper
28        functioning of the total return trust.
29        (f)  Allocations.
30             (1)  Expenses, taxes, and other charges  that  would
31        be  deducted  from  income  if the trust were not a total
32        return trust shall not be deducted from the  distribution
33        amount.
34             (2)  Unless  otherwise  provided  by  the  governing
 
                            -8-      LRB093 02133 DRJ 03768 b
 1        instrument,  the  trustee  shall  fund  the  distribution
 2        amount each year from the following sources for that year
 3        in  the  order listed: first from net income (as the term
 4        would be determined if the trust were not a total  return
 5        trust), then from other ordinary income as determined for
 6        federal  income  tax  purposes,  then  from  net realized
 7        short-term capital gains as determined for federal income
 8        tax purposes, then from net  realized  long-term  capital
 9        gains as determined for federal income tax purposes, then
10        from  trust principal comprised of assets for which there
11        is a readily available market value, and then from  other
12        trust principal.
13        (g)  Court  orders.  The  court  may  order  any  of  the
14    following  actions  in a proceeding brought by a trustee or a
15    beneficiary in accordance with subdivision (c)(1), (c)(2), or
16    (c)(3):
17             (1)  select a distribution percentage other than 4%;
18             (2)  average the valuation of the trust's net assets
19        over a period other than 3 years;
20             (3)  reconvert  prospectively  from  or  adjust  the
21        distribution percentage of a total return trust;
22             (4)  direct   the   distribution   of   net   income
23        (determined as if the  trust  were  not  a  total  return
24        trust)  in excess of the distribution amount as to any or
25        all trust assets if  the  distribution  is  necessary  to
26        preserve a tax benefit; or
27             (5)  change  or  direct any administrative procedure
28        as the court determines  necessary  or  helpful  for  the
29        proper functioning of the total return trust; or.
30             (6)  order  reimbursement  of  the fees and expenses
31        incurred by a beneficiary if the court grants a  petition
32        of  the beneficiary or of a trustee and such other relief
33        as a court may find appropriate in the  exercise  of  its
34        equitable powers.
 
                            -9-      LRB093 02133 DRJ 03768 b
 1        Nothing  in  this  subsection  (g)  limits  the equitable
 2    powers of the court to grant other relief.
 3        (g-5)  Considerations.  A trustee or a court may consider
 4    the following when deciding whether to accept  or  decline  a
 5    request  to  convert,  reconvert, or determine a distribution
 6    percentage:
 7             (1)  The nature, purpose, and expected  duration  of
 8        the trust.
 9             (2)  The intent of the settlor.
10             (3)  The   identity   and   circumstances   of   the
11        beneficiaries.
12             (4)  The  needs for liquidity, regularity of income,
13        and preservation and appreciation of capital.
14             (5)  The assets held in the  trust;  the  extent  to
15        which  they  consist  of  financial  assets, interests in
16        closely  held  enterprises,   tangible   and   intangible
17        personal  property, or real property; the extent to which
18        an asset is used by a beneficiary; and whether  an  asset
19        was  purchased  by  the  trustee  or  received  from  the
20        settlor.
21             (6)  The   net  amount  allocated  to  income  under
22        Section 3  of  the  Principal  and  Income  Act  and  the
23        increase  or  decrease  in  the  value  of  the principal
24        assets, which the trustee may estimate as to  assets  for
25        which market values are not readily available.
26             (7)  Whether  and  to  what  extent the terms of the
27        trust give the trustee the power to invade  principal  or
28        accumulate  income  or prohibit the trustee from invading
29        principal or accumulating income, and the extent to which
30        the trustee has exercised a power from time  to  time  to
31        invade principal or accumulate income.
32             (8)  The  actual  and anticipated effect of economic
33        conditions on principal and income  and  the  effects  of
34        inflation and deflation.
 
                            -10-     LRB093 02133 DRJ 03768 b
 1             (9)  The   anticipated   tax   consequences   of  an
 2        adjustment.
 3        (h)  Restrictions. The distribution  amount  may  not  be
 4    less  than  the  net  income of the trust, determined without
 5    regard to the provisions of this Section, for either a  trust
 6    for  which  an estate tax or a gift tax marital deduction was
 7    or may be claimed in whole or in part (but  only  during  the
 8    lifetime  of the spouse for whom the trust was created), or a
 9    trust  that  was  exempt   in   whole   or   in   part   from
10    generation-skipping  transfer  tax  on  the effective date of
11    this amendatory Act of the 92nd General Assembly by reason of
12    any effective date or transition rule. Conversion to a  total
13    return  trust  does not affect any provision in the governing
14    instrument:
15             (1)  directing  or  authorizing   the   trustee   to
16        distribute principal;
17             (2)  directing   or   authorizing   the  trustee  to
18        distribute a fixed annuity or a  fixed  fraction  of  the
19        value of trust assets;
20             (3)  authorizing a beneficiary to withdraw a portion
21        or all of the principal; or
22             (4)  in  any  manner  that  would diminish an amount
23        permanently set aside for charitable purposes  under  the
24        governing instrument unless both income and principal are
25        so set aside.
26        (i)  Tax  limitations.  If  a  particular  trustee  is  a
27    beneficiary of the trust and conversion or failure to convert
28    would  enhance  or  diminish  the  beneficial interest of the
29    trustee, or if possession or exercise of the conversion power
30    by a particular trustee would alone cause any  individual  to
31    be  treated  as  owner  of a part of the trust for income tax
32    purposes or cause a part of the trust to be included  in  the
33    gross  estate of any individual for estate tax purposes, then
34    that particular trustee may not participate as a  trustee  in
 
                            -11-     LRB093 02133 DRJ 03768 b
 1    the exercise of the conversion power; however:
 2             (1)  the   trustee  may  petition  the  court  under
 3        subdivision (c)(1) to order conversion in accordance with
 4        this Section; and
 5             (2)  if the trustee has one or more  co-trustees  to
 6        whom  this  subsection (i) does not apply, the co-trustee
 7        or co-trustees may convert the trust to  a  total  return
 8        trust in accordance with this Section.
 9        (j)  Releases.  A  trustee  may  irrevocably  release the
10    power granted by  this  Section  if  the  trustee  reasonably
11    believes  the  release  is in the best interests of the trust
12    and its beneficiaries. The release may  be  personal  to  the
13    releasing  trustee  or  may  apply  generally  to some or all
14    subsequent trustees, and the release may be for any specified
15    period, including  a  period  measured  by  the  life  of  an
16    individual.
17        (k)  Remedies. A trustee who reasonably and in good faith
18    takes  or  omits to take any action under this Section is not
19    liable to any person interested in the trust.  If  a  trustee
20    reasonably  and  in  good  faith  takes  or omits to take any
21    action under this Section and  a  person  interested  in  the
22    trust  opposes  the  act  or omission, the person's exclusive
23    remedy is to obtain an  order  of  the  court  directing  the
24    trustee  to  convert  the  trust  to a total return trust, to
25    reconvert  from  a  total  return  trust,   to   change   the
26    distribution  percentage,  or  to  order  any  administrative
27    procedures  the court determines necessary or helpful for the
28    proper functioning of the trust. If a court  finds  that  the
29    trustee  did  not act reasonably and in good faith, the court
30    may require the trustee to pay an appropriate amount from the
31    trustee's own funds to the trust or the beneficiaries to  put
32    the  trust  or  the  beneficiaries in the position that it or
33    they would have occupied if the trustee had not so acted.  An
34    act or omission by a trustee under this Section  is  presumed
 
                            -12-     LRB093 02133 DRJ 03768 b
 1    taken  or  omitted  reasonably and in good faith unless it is
 2    determined by the court to have been an abuse of  discretion.
 3    Any  claim  by any person interested in the trust that an act
 4    or omission by a trustee under this Section was an  abuse  of
 5    discretion   is  barred  if  not  asserted  in  a  proceeding
 6    commenced by or on behalf of the person within 2 years  after
 7    the  trustee  has sent to the person or the person's personal
 8    representative a notice or  report  in  writing  sufficiently
 9    disclosing  facts  fundamental  to  the  claim  such that the
10    person knew or reasonably should have known of the claim. The
11    preceding sentence shall not apply to a person who was  under
12    a  legal disability at the time the notice or report was sent
13    and who then had no personal representative.  For purposes of
14    this subsection (k), a personal representative  refers  to  a
15    court  appointed  guardian  or conservator of the estate of a
16    person.
17        (l)  Application. This Section is available to trusts  in
18    existence on the effective date of this amendatory Act of the
19    92nd  General  Assembly  or  created  after  that  date. This
20    Section   shall   be   construed   as   pertaining   to   the
21    administration of a trust and shall be available to any trust
22    that is administered in Illinois under Illinois law  or  that
23    is  governed  by Illinois law with respect to the meaning and
24    effect of its terms unless:
25             (1)  the trust is  a  trust  described  in  Internal
26        Revenue   Code  Section  170(f)(2)(B),  664(d),  1361(d),
27        2702(a)(3), or 2702(b); or
28             (2)  the governing  instrument  expressly  prohibits
29        use  of  this  Section  by  specific  reference  to  this
30        Section.  A  provision in the governing instrument in the
31        form: "Neither the  provisions  of  Section  5.3  of  the
32        Trusts  and  Trustees Act nor any corresponding provision
33        of future law may be used in the administration  of  this
34        trust"  or  a similar provision demonstrating that intent
 
                            -13-     LRB093 02133 DRJ 03768 b
 1        is sufficient to preclude the use of this Section; or.
 2             (3)  the trust is a trust with respect  to  which  a
 3        trustee  currently  possesses  the  power to adjust under
 4        Section 4.5 of the Principal and Income Act.
 5    (Source: P.A. 92-838, eff. 8-22-02.)

 6        Section 10.  The Principal and Income Act is  amended  by
 7    adding Sections 4.5 and 4.10 as follows:

 8        (760 ILCS 15/4.5 new)
 9        Sec. 4.5.  Trustee's power to adjust.
10        (a)  A trustee may adjust between principal and income to
11    the  extent  the  trustee  considers necessary if the trustee
12    invests and manages trust assets as a prudent  investor,  the
13    terms  of  the  trust describe the amount that may or must be
14    distributed to a beneficiary  by  referring  to  the  trust's
15    income,  and the trustee determines, after applying the rules
16    in subsection (b) of Section 3 of this Act, that the  trustee
17    is unable to comply with that subsection (b).
18        (b)  In  deciding  whether and to what extent to exercise
19    the power  conferred  by  subsection  (a),  a  trustee  shall
20    consider   all   factors   relevant  to  the  trust  and  its
21    beneficiaries, including the following factors to the  extent
22    that they are relevant:
23             (1)  The  nature,  purpose, and expected duration of
24        the trust.
25             (2)  The intent of the settlor.
26             (3)  The   identity   and   circumstances   of   the
27        beneficiaries.
28             (4)  The needs for liquidity, regularity of  income,
29        and preservation and appreciation of capital.
30             (5)  The  assets  held  in  the trust; the extent to
31        which they consist  of  financial  assets,  interests  in
32        closely   held   enterprises,   tangible  and  intangible
 
                            -14-     LRB093 02133 DRJ 03768 b
 1        personal property, or real property; the extent to  which
 2        an  asset  is used by a beneficiary; and whether an asset
 3        was  purchased  by  the  trustee  or  received  from  the
 4        settlor.
 5             (6)  The net amount allocated to  income  under  the
 6        other  Sections  of this Act and the increase or decrease
 7        in the value of the principal assets, which  the  trustee
 8        may estimate as to assets for which market values are not
 9        readily available.
10             (7)  Whether  and  to  what  extent the terms of the
11        trust give the trustee the power to invade  principal  or
12        accumulate  income  or prohibit the trustee from invading
13        principal or accumulating income, and the extent to which
14        the trustee has exercised a power from time  to  time  to
15        invade principal or accumulate income.
16             (8)  The  actual  and anticipated effect of economic
17        conditions on principal and income  and  the  effects  of
18        inflation and deflation.
19             (9)  The   anticipated   tax   consequences   of  an
20        adjustment.
21        (c)  A trustee may not make an adjustment:
22             (1)  that diminishes the income interest in a  trust
23        that  requires  all  of  the  income  to be paid at least
24        annually to a spouse and for which an estate tax or  gift
25        tax  marital  deduction  would be allowed, in whole or in
26        part, if the trustee did not have the power to  make  the
27        adjustment;
28             (2)  that  reduces the actuarial value of the income
29        interest in a trust to which a person transfers  property
30        with the intent to qualify for a gift tax exclusion;
31             (3)  that   changes   the   amount   payable   to  a
32        beneficiary as a fixed annuity or a fixed fraction of the
33        value of the trust assets;
34             (4)  from any amount that is permanently  set  aside
 
                            -15-     LRB093 02133 DRJ 03768 b
 1        for  charitable  purposes  under a will or the terms of a
 2        trust unless both income and principal are so set aside;
 3             (5)  if possessing or exercising the power  to  make
 4        an  adjustment  causes an individual to be treated as the
 5        owner of  all  or  part  of  the  trust  for  income  tax
 6        purposes,  and the individual would not be treated as the
 7        owner if the trustee did not possess the power to make an
 8        adjustment;
 9             (6)  if possessing or exercising the power  to  make
10        an  adjustment  causes all or part of the trust assets to
11        be included for estate tax purposes in the estate  of  an
12        individual  who  has  the  power  to  remove a trustee or
13        appoint a trustee, or both, and the assets would  not  be
14        included  in  the estate of the individual if the trustee
15        did not possess the power to make an adjustment;
16             (7)  if the trustee is a beneficiary of  the  trust;
17        or
18             (8)  if  the  trustee  is not a beneficiary, but the
19        adjustment  would  benefit  the   trustee   directly   or
20        indirectly.
21        (d)  If  subdivision  (c)(5),  (c)(6),  (c)(7), or (c)(8)
22    applies to a trustee and there is more than  one  trustee,  a
23    co-trustee  to whom the provision does not apply may make the
24    adjustment unless the exercise of the power by the  remaining
25    trustee  or  trustees  is  not  permitted by the terms of the
26    trust.
27        (e)  A trustee may release the entire power conferred  by
28    subsection  (a)  or may release only the power to adjust from
29    income to principal or the power to adjust from principal  to
30    income  if  the trustee is uncertain about whether possessing
31    or exercising the power will  cause  a  result  described  in
32    subdivisions  (c)(1)  through (c)(6) or in subdivision (c)(8)
33    or if the trustee determines that  possessing  or  exercising
34    the  power  will or may deprive the trust of a tax benefit or
 
                            -16-     LRB093 02133 DRJ 03768 b
 1    impose a tax burden not  described  in  subsection  (c).  The
 2    release may be permanent or for a specified period, including
 3    a period measured by the life of an individual.
 4        (f)  Terms  of  a trust that limit the power of a trustee
 5    to make an adjustment between principal  and  income  do  not
 6    affect  the  application  of  this Section unless it is clear
 7    from the terms of the trust that the terms  are  intended  to
 8    deny  the  trustee  the  power  of  adjustment  conferred  by
 9    subsection (a).
10        (g)  With  respect  to a trust in existence on January 1,
11    2003:
12             (1)  A trustee shall not have the  power  to  adjust
13        under  this  Section if, within 60 days after the date of
14        the  statement  required  in  subsection  (h),  a   super
15        majority  of  the  trust  beneficiaries  deliver  to  the
16        trustee  a  written  objection to the application of this
17        Section to the trust. An objection shall be deemed to  be
18        delivered  to  the  trustee  on the date the objection is
19        mailed to  the  mailing  address  listed  in  the  notice
20        provided under subsection (h).
21             (2)  An objection under this Section may be executed
22        by  a  legal  representative  or  natural  guardian  of a
23        beneficiary  without  the  commencement  of   any   court
24        proceeding or the approval of any court.
25             (3)  If  an  objection  is delivered to the trustee,
26        then the trustee may petition the circuit  court  for  an
27        order  quashing  the objection and vesting in the trustee
28        the power to adjust under this Section. The  burden  will
29        be on the objecting beneficiaries to prove that the power
30        to  adjust would be inequitable, illegal, or otherwise in
31        contravention of the  grantor's  intent.  The  court  may
32        award costs and attorney's fees relating to the trustee's
33        petition  in the same manner as in chancery actions. When
34        costs and attorney's fees are  to  be  paid  out  of  the
 
                            -17-     LRB093 02133 DRJ 03768 b
 1        trust,  the  court,  in  its  discretion, may direct from
 2        which part of the trust they shall be paid.
 3             (4)  If no  timely  objection  is  made  or  if  the
 4        trustee  is  vested  with  the  power  to adjust by court
 5        order, the trustee may thereafter exercise the  power  to
 6        adjust  without  providing  notice of its intent to do so
 7        unless, in vesting the trustee with the power to  adjust,
 8        the  court  determines that unusual circumstances require
 9        otherwise.
10             (5)  If a trustee  makes  a  good  faith  effort  to
11        comply  with the notice provisions of subsection (h), but
12        fails to deliver notice  to  one  or  more  beneficiaries
13        entitled  to  such  notice,  neither  the validity of the
14        notice required under this subsection nor  the  trustee's
15        power  to  adjust  under  this  Section shall be affected
16        until the trustee has actual  notice  that  one  or  more
17        beneficiaries entitled to notice were not notified. Until
18        the  trustee  has actual notice of the notice deficiency,
19        the trustee has all of the powers and protections granted
20        a trustee with the power to adjust under this Act.   When
21        the   trustee   has   actual  notice  that  one  or  more
22        beneficiaries entitled to  notice  under  subsection  (h)
23        were  not  notified,  the trustee's power to adjust under
24        this Section shall cease until all beneficiaries who  are
25        entitled   to  such  notice,  including  those  who  were
26        previously provided with such notice,  are  notified  and
27        given  the  opportunity  to  object as provided for under
28        this subsection.
29             (6)  The  objection   of   a   super   majority   of
30        beneficiaries  under this subsection shall be valid for a
31        period of one year after the date  of  the  notice  given
32        under  subsection  (h). Upon expiration of the objection,
33        the trustee  may  thereafter  give  a  new  notice  under
34        subsection (h).
 
                            -18-     LRB093 02133 DRJ 03768 b
 1             (7)  Nothing  in  this Section is intended to create
 2        or imply a duty of the trustee of  a  trust  existing  on
 3        January  1,  2003  to  seek a power to adjust pursuant to
 4        this subsection  or  to  give  the  notice  described  in
 5        subsection  (h)  if the trustee does not desire to have a
 6        power to adjust under this Section, and no  inference  of
 7        impropriety  shall be made as the result of a trustee not
 8        seeking a power to adjust pursuant to this subsection.
 9             (8)  A trust exists on January 1, 2003 if it is  not
10        revocable  on January 1, 2003. A trust is revocable if it
11        is revocable by the grantor alone or in conjunction  with
12        any  other  person. A trust is not revocable for purposes
13        of this Section if it is revocable by  the  grantor  only
14        with  the  consent  of  all  persons  having a beneficial
15        interest in the property.
16        (h)  A trustee of a trust in existence on January 1, 2003
17    that is not prohibited under subsection (c)  from  exercising
18    the   power  to  adjust  shall,  any  time  before  initially
19    exercising  the  power,  provide  notice  to  the   following
20    beneficiaries:
21             (1)  All  of the legally competent beneficiaries who
22        are then  currently  receiving  or  eligible  to  receive
23        income from the trust.
24             (2)  All  of the legally competent beneficiaries who
25        would receive or be eligible to receive a distribution of
26        principal or income if the then-current interests of  the
27        beneficiaries  then  currently  receiving  or eligible to
28        receive income ended (the beneficiaries described in this
29        paragraph (2)  are  hereinafter  referred  to  as  notice
30        beneficiaries").
31        The  notice  required  under this subsection must include
32    all of the following:
33             (A)  The name, telephone number, street address, and
34        mailing address of the trustee and of any individuals who
 
                            -19-     LRB093 02133 DRJ 03768 b
 1        may be contacted for further information.
 2             (B)  A statement that unless a super majority of the
 3        beneficiaries objects to the application of this  Section
 4        to  the trust within 60 days after the date the statement
 5        pursuant to this subsection was served, then this Section
 6        will apply to the trust; and the trustee  will  have  the
 7        power  to  adjust  between  income and principal and that
 8        such a power may have an effect on the  distributions  to
 9        such beneficiary from the trust.
10             (C)  The  statement required under paragraph (B) may
11        contain  information  regarding  a  trustee's   fiduciary
12        obligations  with  respect to the power to adjust between
13        income and principal under this Section.
14        (i)  For purposes of subsections (g) and  (h),  a  "super
15    majority"   of   the   trust  beneficiaries  means  at  least
16    two-thirds  in  interest  of  the  reasonably   ascertainable
17    current beneficiaries described in subsection (h).

18        (760 ILCS 15/4.10 new)

19        Sec. 4.10.  Judicial control of discretionary power.
20        (a)  The  court  may  not  order  a fiduciary to change a
21    decision to exercise or not to exercise a discretionary power
22    conferred by this Act unless it determines that the  decision
23    was  an  abuse  of  the fiduciary's discretion. A fiduciary's
24    decision is not an abuse of  discretion  merely  because  the
25    court would have exercised the power in a different manner or
26    would not have exercised the power.
27        (b)  The   decisions  to  which  subsection  (a)  applies
28    include the following:
29             (1)  A decision under Section 4.5 as to whether  and
30        to  what  extent  an  amount  should  be transferred from
31        principal to income or from income to principal.
32             (2)  A  decision  regarding  the  factors  that  are
 
                            -20-     LRB093 02133 DRJ 03768 b
 1        relevant to the trust and its beneficiaries,  the  extent
 2        to  which  the  factors  are relevant, and the weight, if
 3        any, to be given to those factors,  in  deciding  whether
 4        and  to  what  extent to exercise the discretionary power
 5        conferred by Section 4.5.
 6        (c)  If the court determines that a fiduciary has  abused
 7    the  fiduciary's  discretion,  the court may place the income
 8    and remainder beneficiaries in the positions they would  have
 9    occupied  if the discretion had not been abused, according to
10    the following rules:
11             (1)  To the extent that the abuse of discretion  has
12        resulted  in  no  distribution  to  a beneficiary or in a
13        distribution that is too small, the court shall order the
14        fiduciary to distribute from the trust to the beneficiary
15        an amount that the  court  determines  will  restore  the
16        beneficiary,  in  whole  or in part, to the beneficiary's
17        appropriate position.
18             (2)  To the extent that the abuse of discretion  has
19        resulted  in  a distribution to a beneficiary that is too
20        large, the  court  shall  place  the  beneficiaries,  the
21        trust, or both, in whole or in part, in their appropriate
22        positions by ordering the fiduciary to withhold an amount
23        from  one or more future distributions to the beneficiary
24        who received the  distribution  that  was  too  large  or
25        ordering  that  beneficiary  to return some or all of the
26        distribution to the trust.
27             (3)  To the extent that the court is  unable,  after
28        applying   paragraphs   (1)   and   (2),   to  place  the
29        beneficiaries, the trust, or both, in the positions  they
30        would  have  occupied  if  the  discretion  had  not been
31        abused, the court may  order  the  fiduciary  to  pay  an
32        appropriate  amount  from its own funds to one or more of
33        the beneficiaries or the trust or both.
34        (d)  Upon petition by the  fiduciary,  the  court  having
 
                            -21-     LRB093 02133 DRJ 03768 b
 1    jurisdiction  over a trust shall determine whether a proposed
 2    exercise or non-exercise by the fiduciary of a  discretionary
 3    power  conferred  by  this Act will result in an abuse of the
 4    fiduciary's  discretion.  If  the  petition   describes   the
 5    proposed  exercise  or non-exercise of the power and contains
 6    sufficient information to inform  the  beneficiaries  of  the
 7    reasons  for the proposal, the facts upon which the fiduciary
 8    relies, and an explanation of how the  income  and  remainder
 9    beneficiaries  will  be  affected by the proposed exercise or
10    non-exercise of the power, a beneficiary who  challenges  the
11    proposed   exercise   or   non-exercise  has  the  burden  of
12    establishing that it will result in an abuse of discretion.