Full Text of HB1080 93rd General Assembly
HB1080sam003 93RD GENERAL ASSEMBLY
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Sen. John J. Cullerton
Filed: 5/12/2004
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| AMENDMENT TO HOUSE BILL 1080
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| AMENDMENT NO. ______. Amend House Bill 1080, AS AMENDED, by | 3 |
| replacing the introductory clause of Section 5 with the | 4 |
| following:
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| "Section 5. The Trusts and Trustees Act is amended by | 6 |
| changing Section 5.3 and adding Section 5.5 as follows:
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| (760 ILCS 5/5.3)
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| Sec. 5.3. Total return trusts.
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| (a) Conversion by trustee. A trustee may convert a trust to | 10 |
| a
total return trust as described in this Section if all of the
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| following apply:
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| (1) The trust describes the amount that may or must
be | 13 |
| distributed to a beneficiary by referring to the
trust's | 14 |
| income, and the trustee determines that
conversion to a | 15 |
| total return trust will enable the
trustee to better carry | 16 |
| out the purposes of the trust and the conversion is in
the | 17 |
| best interests of the beneficiaries;
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| (2) conversion to a total return trust means the | 19 |
| trustee will invest and
manage trust assets seeking a total | 20 |
| return without regard to whether that
return is from income | 21 |
| or appreciation of principal, and will make distributions
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| in accordance with this Section (such a trust is called a | 23 |
| "total return trust"
in this Section);
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| (3) the trustee sends a written notice of the trustee's |
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| decision to
convert the trust to a total return trust, | 2 |
| specifying a prospective effective
date for the conversion | 3 |
| and including a copy of this Section, to the following
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| beneficiaries, determined as of the date the notice is sent | 5 |
| and assuming
nonexercise of all powers of appointment:
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| (A) all of the legally competent beneficiaries who | 7 |
| are currently
receiving or eligible to receive income | 8 |
| from the trust; and
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| (B) all of the legally competent beneficiaries who | 10 |
| would receive or be
eligible to receive a distribution | 11 |
| of principal or income if the current
interests of | 12 |
| beneficiaries currently receiving or eligible to | 13 |
| receive income
ended;
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| (4) there are one or more legally competent income | 15 |
| beneficiaries
under subdivision (3)(A) of this subsection | 16 |
| (a) and one or more legally
competent remainder | 17 |
| beneficiaries under subdivision (3)(B) of this subsection
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| (a), determined as of the date of sending the notice;
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| (5) no beneficiary objects to the conversion to a total | 20 |
| return trust in a
writing delivered to the trustee within | 21 |
| 60 days after the notice is sent; and
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| (6) the trustee has signed acknowledgments of receipt | 23 |
| confirming that
notice was received by each beneficiary | 24 |
| required to be sent notice under
subdivision (3) of this | 25 |
| subsection (a).
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| (b) Conversion by agreement. Conversion to a total return | 27 |
| trust may be made
by agreement between a trustee and all the | 28 |
| primary beneficiaries of the trust
under the virtual | 29 |
| representation provisions of Section 16.1 of this Act if
those | 30 |
| provisions otherwise apply. The agreement may include any | 31 |
| actions a court
could properly order under subsection (g) of | 32 |
| this Section; however, any
distribution percentage determined | 33 |
| by the agreement may not be less than 3%
nor greater than 5%.
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| (c) Conversion or reconversion by court.
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| (1) The trustee may for any reason elect to petition | 2 |
| the court to order
conversion to a total return trust, | 3 |
| including without limitation the reason
that conversion | 4 |
| under subsection (a) is unavailable because:
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| (A) a beneficiary timely objects to the conversion | 6 |
| to a total return
trust;
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| (B) there are no legally competent beneficiaries | 8 |
| described in
subdivision (3)(A) of subsection (a); or
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| (C) there are no legally competent beneficiaries | 10 |
| described in
subdivision (3)(B) of subsection (a).
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| (2) A beneficiary may request the trustee to convert to | 12 |
| a total return
trust or adjust the distribution percentage. | 13 |
| If the trustee declines or fails
to act within 6 months | 14 |
| after receiving
a written request to do so, the beneficiary | 15 |
| may petition the court to order the
conversion or | 16 |
| adjustment.
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| (3) The trustee may petition the court prospectively to | 18 |
| reconvert from a
total return trust or adjust the | 19 |
| distribution percentage if the trustee
determines that the | 20 |
| reconversion or adjustment will enable
the trustee to | 21 |
| better carry out the purposes of the trust. A beneficiary | 22 |
| may
request the trustee to petition the court prospectively | 23 |
| to reconvert from a
total return trust or adjust the | 24 |
| distribution percentage. If the trustee
declines or fails | 25 |
| to act within 6 months
after receiving a written request to | 26 |
| do so, the beneficiary may petition the
court to order the | 27 |
| reconversion or adjustment.
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| (4) In a judicial proceeding under this subsection (c), | 29 |
| the trustee may,
but need not, present the trustee's | 30 |
| opinions and reasons (A) for supporting or
opposing | 31 |
| conversion to (or reconversion from or adjustment of the | 32 |
| distribution
percentage of) a total return trust, | 33 |
| including
whether the trustee believes conversion (or | 34 |
| reconversion
or adjustment of the distribution
percentage)
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| would enable the
trustee to better carry out the purposes | 2 |
| of the trust, and (B) about any other
matters relevant to | 3 |
| the proposed conversion (or reconversion
or adjustment of | 4 |
| the distribution
percentage).
A trustee's
actions in | 5 |
| accordance with this subsection (c) shall not be deemed | 6 |
| improper or
inconsistent with the trustee's duty of | 7 |
| impartiality unless the court finds
from all the evidence | 8 |
| that the trustee acted in bad faith.
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| (5) The court shall order conversion to (or | 10 |
| reconversion prospectively
from
or adjustment of the | 11 |
| distribution percentage
of)
a total return trust if the | 12 |
| court determines that the conversion (or
reconversion or | 13 |
| adjustment of the distribution percentage) will enable the
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| trustee to better carry out the purposes of the
trust and | 15 |
| the conversion
(or reconversion or adjustment of the
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| distribution percentage)
is in the best interests of the | 17 |
| beneficiaries.
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| (6) Notwithstanding any other provision of this | 19 |
| Section, a trustee has no
duty to inform beneficiaries | 20 |
| about the availability of this Section and has no
duty to | 21 |
| review the trust to determine whether any action should be | 22 |
| taken under
this Section unless requested to do so in | 23 |
| writing by a beneficiary described in
subdivision (3) of | 24 |
| subsection (a).
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| (d) Post conversion. While a trust is a total return trust, | 26 |
| all
of the following shall apply to the trust:
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| (1) the trustee shall make income distributions in | 28 |
| accordance with the
governing instrument subject to the | 29 |
| provisions of this Section;
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| (2) the term "income" in the governing instrument means | 31 |
| an annual amount
(the "distribution amount") equal to a | 32 |
| percentage (the "distribution
percentage") of the net fair | 33 |
| market value of the trust's assets, whether the
assets are | 34 |
| considered income or principal under the Principal and |
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| Income Act,
averaged over the lesser of:
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| (i) the 3 preceding years; or
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| (ii) the period during which the trust has been in | 4 |
| existence;
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| (3) the distribution percentage for any trust | 6 |
| converted to a total return
trust by a trustee in | 7 |
| accordance with subsection (a) shall be 4%; and
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| (4) the trustee shall pay to a beneficiary (in the case | 9 |
| of an
underpayment) and shall recover from a beneficiary | 10 |
| (in the case of an
overpayment) an amount equal to the | 11 |
| difference between the amount properly
payable and the | 12 |
| amount actually paid, plus interest compounded annually at | 13 |
| a
rate per annum equal to the distribution percentage in | 14 |
| the year or years while
the underpayment or overpayment | 15 |
| exists ; and .
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| (5) a change in the method of determining a reasonable | 17 |
| current return by converting to a total return trust in | 18 |
| accordance with this Section and substituting the | 19 |
| distribution amount for net trust accounting income is a | 20 |
| proper change in the definition of trust income | 21 |
| notwithstanding any contrary provision of the Principal | 22 |
| and Income Act, and the distribution amount shall be deemed | 23 |
| a reasonable current return that fairly apportions the | 24 |
| total return of a total return trust.
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| (e) Administration. The trustee, in the trustee's | 26 |
| discretion, may determine
any of the following matters in | 27 |
| administering a total return trust as the
trustee from time to | 28 |
| time determines necessary or helpful for the
proper functioning | 29 |
| of the trust:
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| (1) the effective date of a conversion to a total | 31 |
| return trust;
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| (2) the manner of prorating the distribution amount for | 33 |
| a short year in
which a beneficiary's interest commences or | 34 |
| ceases;
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| (3) whether distributions are made in cash or in kind;
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| (4) the manner of adjusting valuations and | 3 |
| calculations of the
distribution amount to account for | 4 |
| other payments from or contributions to the
trust;
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| (5) whether to value the trust's assets annually or | 6 |
| more frequently;
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| (6) what valuation dates and how many valuation dates | 8 |
| to use;
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| (7) valuation decisions about any asset for which there | 10 |
| is no
readily available market value, including:
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| (A) how frequently to value such an asset;
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| (B) whether and how often to engage a professional | 13 |
| appraiser
to value such an asset; and
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| (C) whether to exclude the value of such an asset | 15 |
| from the net
fair market value of the trust's assets | 16 |
| under subdivision (d)(2) for
purposes of determining | 17 |
| the distribution amount. Any such asset so
excluded is | 18 |
| referred to as an "excluded asset" in this subsection
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| (e), and the trustee shall distribute any net income | 20 |
| received from
the excluded asset as provided for in the | 21 |
| governing instrument,
subject to the following | 22 |
| principles:
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| (i) unless the trustee determines there are | 24 |
| compelling reasons to the
contrary considering all | 25 |
| relevant factors including the best interests of | 26 |
| the
beneficiaries, the trustee shall treat each | 27 |
| asset for which there is no readily
available | 28 |
| market value as an excluded asset;
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| (ii) if tangible personal property or real | 30 |
| property is possessed or
occupied by a | 31 |
| beneficiary, the trustee shall not limit or | 32 |
| restrict any right of
the beneficiary to use the | 33 |
| property in accordance with the governing | 34 |
| instrument
whether or not the trustee treats the |
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| property as an excluded asset;
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| (iii) examples of assets for which there is a | 3 |
| readily available market
value include: cash and | 4 |
| cash equivalents; stocks, bonds, and other | 5 |
| securities
and instruments for which there is an | 6 |
| established market on a stock exchange,
in an | 7 |
| over-the-counter market, or otherwise; and any | 8 |
| other property that can
reasonably be expected to | 9 |
| be sold within one week of the decision to sell
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| without extraordinary efforts by the seller;
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| (iv) examples of assets for which there is no | 12 |
| readily available market
value include: stocks, | 13 |
| bonds, and other securities and instruments for | 14 |
| which
there is no established market on a stock | 15 |
| exchange, in an over-the-counter
market, or | 16 |
| otherwise; real property; tangible personal | 17 |
| property; and artwork
and other collectibles; and
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| (8) any other administrative matters as the trustee | 19 |
| determines necessary
or helpful for the proper functioning | 20 |
| of the total return trust.
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| (f) Allocations.
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| (1) Expenses, taxes, and other charges that would be | 23 |
| deducted from income
if the trust were not a total return | 24 |
| trust shall not be deducted from the
distribution amount.
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| (2) Unless otherwise provided by the governing | 26 |
| instrument, the trustee
shall fund the distribution amount | 27 |
| each year from the following sources for
that year in the | 28 |
| order listed: first from net income (as the term would be
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| determined if the trust were not a total return trust), | 30 |
| then from other
ordinary income as determined for federal | 31 |
| income tax purposes, then from net
realized short-term | 32 |
| capital gains as determined for federal income tax
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| purposes, then from net realized long-term capital gains as | 34 |
| determined for
federal income tax purposes, then from trust |
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| principal comprised of assets for
which there is a readily | 2 |
| available market value, and then from other trust
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| principal.
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| (g) Court orders. The court may order any of the following | 5 |
| actions in a
proceeding brought by a trustee or a beneficiary | 6 |
| in accordance with subdivision
(c)(1), (c)(2),
or (c)(3):
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| (1) select a distribution percentage other than 4%;
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| (2) average the valuation of the trust's net assets | 9 |
| over a period other
than 3 years;
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| (3) reconvert prospectively from
or adjust the | 11 |
| distribution percentage
of
a total return trust;
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| (4) direct the distribution of net income (determined | 13 |
| as if the trust were
not a total return trust) in excess of | 14 |
| the distribution amount as to any or all
trust assets if | 15 |
| the distribution is necessary to preserve a tax benefit; or
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| (5) change or direct any administrative procedure as | 17 |
| the court determines
necessary or helpful for the proper | 18 |
| functioning of the total return trust.
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| Nothing in this subsection (g) limits the equitable powers | 20 |
| of the court to
grant
other
relief.
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| (h) Restrictions. The distribution amount may not be less | 22 |
| than the net
income of the trust, determined without regard to | 23 |
| the provisions of this
Section, for either a trust for which an | 24 |
| estate tax or a gift tax marital
deduction was or may be | 25 |
| claimed in whole or in part (but only during the
lifetime of | 26 |
| the spouse for whom the trust was created), or a trust that was
| 27 |
| exempt in whole or in part from generation-skipping transfer | 28 |
| tax on the
effective date of this amendatory Act of the 92nd | 29 |
| General Assembly by reason of
any effective date or transition | 30 |
| rule. Conversion to a total return trust does
not affect any | 31 |
| provision in the governing instrument:
| 32 |
| (1) directing or authorizing the trustee to distribute | 33 |
| principal;
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| (2) directing or authorizing the trustee to distribute |
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| a fixed annuity or
a fixed fraction of the value of trust | 2 |
| assets;
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| (3) authorizing a beneficiary to withdraw a portion or | 4 |
| all of the
principal; or
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| (4) in any manner that would diminish an amount | 6 |
| permanently set aside for
charitable purposes under the | 7 |
| governing instrument unless both income and
principal are | 8 |
| so set aside.
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| (i) Tax limitations. If a particular trustee is a | 10 |
| beneficiary of the trust
and conversion or failure to convert | 11 |
| would enhance or diminish the beneficial
interest of the | 12 |
| trustee, or if possession or exercise of the conversion power
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| by a particular trustee would alone cause any individual to be | 14 |
| treated as owner
of a part of the trust for income tax purposes | 15 |
| or cause a part of the trust to
be included in the gross estate | 16 |
| of any individual for estate tax purposes, then
that particular | 17 |
| trustee may not participate as a trustee in the exercise of the
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| conversion power; however:
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| (1) the trustee may petition the court under | 20 |
| subdivision (c)(1) to order
conversion in accordance with | 21 |
| this Section; and
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| (2) if the trustee has one or more co-trustees to whom | 23 |
| this subsection (i)
does not apply, the co-trustee or | 24 |
| co-trustees may convert the trust to a total
return trust | 25 |
| in accordance with this Section.
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| (j) Releases. A trustee may irrevocably release the power | 27 |
| granted by this
Section if the trustee reasonably believes the | 28 |
| release is in the best interests
of the trust and its | 29 |
| beneficiaries. The release may be personal to the
releasing | 30 |
| trustee or may apply generally to some or all subsequent | 31 |
| trustees,
and the release may be for any specified period, | 32 |
| including a period measured by
the life of an individual.
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| (k) Remedies. A trustee who reasonably and in good faith | 34 |
| takes or omits to
take any action under this Section is not |
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| liable to any person interested in
the trust.
If a trustee | 2 |
| reasonably and
in good faith takes or omits to take any action | 3 |
| under this Section and a person
interested in the trust opposes | 4 |
| the act or omission, the person's exclusive
remedy is to obtain | 5 |
| an order of the court directing the trustee to convert the
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| trust to a total return trust, to reconvert from a total return | 7 |
| trust, to
change the distribution percentage, or to order any | 8 |
| administrative procedures
the court determines necessary or | 9 |
| helpful for the proper functioning of the
trust. An act or | 10 |
| omission by a trustee under this Section is presumed taken or
| 11 |
| omitted reasonably and in good faith unless it is
determined by | 12 |
| the court to have been an abuse of discretion. Any claim by any
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| person interested in the trust that an act or omission by a | 14 |
| trustee under this
Section was an abuse of discretion is barred | 15 |
| if not asserted in a proceeding
commenced by or on behalf of | 16 |
| the person within 2 years after the trustee has
sent to the | 17 |
| person or the person's personal representative a notice or
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| report in writing sufficiently disclosing facts fundamental to | 19 |
| the claim such
that the person knew or reasonably should have | 20 |
| known of the claim.
The preceding sentence shall not apply to a | 21 |
| person who was under a legal
disability at the time the notice | 22 |
| or report was sent and who then had no
personal representative. | 23 |
| For purposes of this subsection (k), a personal
representative | 24 |
| refers to a court appointed guardian or conservator of the
| 25 |
| estate of a person.
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| (l) Application. This Section is available to trusts in | 27 |
| existence on the
effective date of this amendatory Act of the | 28 |
| 92nd General Assembly or created
after that date. This Section | 29 |
| shall be construed as pertaining to the
administration of a | 30 |
| trust and shall be available to any trust that
is administered | 31 |
| in Illinois under Illinois law or that
is governed by Illinois | 32 |
| law with respect to the meaning and effect of
its terms unless:
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| (1) the trust is a trust described in Internal
Revenue | 34 |
| Code Section 642(c)(5),
170(f)(2)(B), 664(d), 1361(d), |
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| 2702(a)(3), or 2702(b); or
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| (2) the governing instrument expressly prohibits use | 3 |
| of this Section by
specific reference to this Section. A | 4 |
| provision in the governing instrument in
the form: "Neither | 5 |
| the provisions of Section 5.3 of the Trusts and Trustees | 6 |
| Act
nor any corresponding provision of future law may be | 7 |
| used in the administration
of this trust" or a similar | 8 |
| provision demonstrating that intent is sufficient
to | 9 |
| preclude the use of this Section.
| 10 |
| (m) Application to express trusts.
| 11 |
| (1) This subsection (m) does not apply to a charitable | 12 |
| remainder unitrust as defined by Section 664(d), Internal | 13 |
| Revenue Code of 1986 (26 U.S.C. Section 664), as amended.
| 14 |
| (2) In this subsection (m):
| 15 |
| (A) "Unitrust" means a trust the terms of which | 16 |
| require distribution of a unitrust amount, without | 17 |
| regard to whether the trust has been converted to a | 18 |
| total return trust in accordance with this Section or | 19 |
| whether the trust is established by express terms of | 20 |
| the governing instrument.
| 21 |
| (B) "Unitrust amount" means an amount equal to a | 22 |
| percentage of a trust's assets that may or must be | 23 |
| distributed to one or more beneficiaries annually in | 24 |
| accordance with the terms of the trust. The unitrust | 25 |
| amount may be determined by reference to the net fair | 26 |
| market value of the trust's assets as of a particular | 27 |
| date or as an average determined on a multiple year | 28 |
| basis.
| 29 |
| (3) A unitrust changes the definition of income by | 30 |
| substituting the unitrust amount for net trust accounting | 31 |
| income as the method of determining current return and | 32 |
| shall be given effect notwithstanding any contrary | 33 |
| provision of the Principal and Income Act. By way of | 34 |
| example and not limitation, a unitrust amount determined by |
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| a percentage of not less than 3% nor greater than 5% is | 2 |
| conclusively presumed a reasonable current return that | 3 |
| fairly apportions the total return of a unitrust.
| 4 |
| (4) The allocations provision of subdivision (2) of | 5 |
| subsection (f) of Section 5.3 applies to a unitrust except | 6 |
| to the extent its governing instrument expressly provides | 7 |
| otherwise.
| 8 |
| (Source: P.A. 92-838, eff. 8-22-02.)
| 9 |
| (760 ILCS 5/5.5 new) | 10 |
| Sec. 5.5. Gift to a deceased beneficiary under an inter | 11 |
| vivos trust. Unless the settlor expressly provides otherwise in | 12 |
| his or her trust: | 13 |
| (1) if a gift of a present or future interest is to a | 14 |
| descendant of the settlor who dies before or after the | 15 |
| settlor, the descendants of the deceased beneficiary | 16 |
| living when the gift is to take effect in possession or | 17 |
| enjoyment take per stirpes the gift so bequeathed;
| 18 |
| (2) if a gift of a present or future interest is to a | 19 |
| class and any member of the class dies before or after the | 20 |
| settlor, the members of the class living when the gift is | 21 |
| to take effect in possession or enjoyment take the share or | 22 |
| shares that the deceased member would have taken if he or | 23 |
| she were then living, except that, if the deceased member | 24 |
| of the class is a descendant of the settlor, the | 25 |
| descendants of the deceased member then living shall take | 26 |
| per stirpes the share or shares that the deceased member | 27 |
| would have taken if he or she were then living; and
| 28 |
| (3) except as above provided in items (1) and (2), if | 29 |
| the gift is not to a descendant of the settlor or is not to | 30 |
| a class as provided in items (1) and (2) and if the | 31 |
| beneficiary dies either before or after the settlor and | 32 |
| before the gift is to take effect in possession or | 33 |
| enjoyment, then the gift shall lapse. If the gift lapses by |
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| reason of the death of the beneficiary before the gift is | 2 |
| to take possession or enjoyment, then the gift so given | 3 |
| shall be included in and pass as part of the residue of the | 4 |
| trust under the trust. If the gift is or becomes part of | 5 |
| the residue, the gift so bequeathed shall pass to and be | 6 |
| taken by the beneficiaries remaining, if any, of the | 7 |
| residue in proportions and upon trusts corresponding to | 8 |
| their respective interests in the residue of the trust.
| 9 |
| The provisions of items (1) and (2) do not apply to a | 10 |
| future interest that is or becomes indefeasibly vested at the | 11 |
| settlor's death or at any time thereafter before it takes | 12 |
| effect in possession or enjoyment. | 13 |
| The provisions of this Section apply on and after January | 14 |
| 1, 2005 for any gifts to a deceased beneficiary under an inter | 15 |
| vivos trust where the deceased beneficiary dies after January | 16 |
| 1, 2005 and before the gift is to take effect in possession or | 17 |
| enjoyment.
| 18 |
| Section 10. The Uniform TOD Security Registration Act is | 19 |
| amended by changing Section 1 as follows:".
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