HCS/SB 909 - This act modifies provision regarding notice of the sale of real estate, powers of appointment, no-contest clauses in trust instruments, and trust protectors, and establishes the Missouri Fiduciary Access to Digital Assets Act.NOTICE OF SALE UNDER A MORTGAGE OR DEED OF TRUST (443.320)
Under current law, notice of the sale of real estate made pursuant to a mortgage or deed of trust is required to be made with at least 20 days' notice through a newspaper. This act provides that notice of sale may also be made through electronic publication, at the discretion of the trustee. The act further sets forth restrictions and requirements for the posting of the notice on the internet.
This provision is identical to a provision in HCS/HB 1651 (2018) and substantially similar to SB 877 (2018) and SB 159 (2017).
POWERS OF APPOINTMENT (456.985, 456.1035, 456.1080)
Under current law, there are exceptions to the general rule that the terms of a document creating or exercising a power of appointment shall take precedence over statutes governing powers of appointment.
This act adds to this list of exceptions and provides that a power of appointment can only be created when a legally valid document manifests the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.
Additionally, a powerholder of a nongeneral power may create a nongeneral power in a permissible appointee.
These provisions are identical to provisions contained in HCS/SCS/SBs 946 & 947 (2018), HB 1844 (2018), HB 1845 (2018), CCS/HCS/SB 569 (2018), and the truly agreed to and finally passed version of HB 1250 (2018).
NO-CONTEST CLAUSES (456.4-420)
This act also provides that a no-contest clause is not enforceable against an interested person filing a motion, pleading, or other claim for relief concerning either a breach of trust by a trustee or for removal of a trustee.
This provision is identical to a provision contained in HB 1650 (2018), HB 1250 (2018), and HCS/SCS/SB 672 (2018) and substantially similar to a provision contained in SCS/SB 942 (2018), SCS/HCS/HB 427 (2017), SB 356 (2017), SCS/SB 171 (2017), SCS/HCB 1 (2017), and the truly agreed to and finally passed version of SB 128 (2017).
TRUST PROTECTORS (456.1-103, 456.8-808)
Currently, a trust may provide for the appointment of a trust protector who is defined as a person other than the settlor, trustee, or beneficiary who is granted one or more powers over the trust. This act provides that a trust may provide for one or more persons, not a trustee, settlor, or beneficiary, to be given any powers over the trust, and such person may be appointed as a trust protector or similar term. The act defines "trust protector" as any person charged in the trust instrument with any responsibilities regarding the trust. When a trust appoints a trust protector then the trust shall be deemed a direct trust, as defined in the act.
A trust protector may take any action necessary in carrying out duties granted to the trust protector in the trust instrument. If the trust has granted the trust protector the authority to direct, consent, or disapprove a trustee's investment decision pursuant to the trust, then the trustee shall not be subject to the provisions of the Missouri Prudent Investor Act when acting pursuant to the trust protector's written directions.
A trustee of a directed trust is not liable for any act or omission of a trust protector or for executing decisions or instructions from a trust protector. Current law provides that a trustee cannot be held liable for any loss resulting from any action taken pursuant to a trust protector's written directions, except in cases of bad faith or reckless indifference on the part of the trustee or as otherwise provided in the trust. This act removes the bad faith or reckless indifference exception to liability immunity for a trustee.
The trust instrument may also provide that a trust protector is subject to the personal jurisdiction of the Missouri courts as a condition of appointment.
These provisions are identical to provisions in HB 1845 (2018) and substantially similar to provisions in SB 947 (2018), HB 1843 (2018), and SB 171 (2017), and similar to provisions in CCS/HCS/SB 569 (2018), HCS/HB 2351 (2018), the truly agreed to and finally passed version of HB 1250 (2018), and SB 841 (2016).
MISSOURI FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (472.400 - 472.490)
This act establishes the Missouri Fiduciary Access to Digital Assets Act, which allows fiduciaries to access electronic records or "digital assets" of an account holder or "user".
A user may allow or prohibit the disclosure of his or her digital assets to a fiduciary in a will, trust, or other record. The user may also use an online tool to direct the custodian of the digital assets to disclose some or all of the digital assets. In certain situations, the direction of the user to the custodian using the online tool can override a conflicting direction contained in the user's will, trust, or other record.
The user's direction regarding the disclosure of the digital assets under an online tool or other record overrides a contrary provision in a terms-of-service agreement that does not require the user to take affirmative action regarding the agreement. A fiduciary's access to digital assets may be modified or eliminated by a user, federal law, or a terms-of-service agreement if the user has not provided direction through the use of an online tool or will, trust, or other record.
A custodian has the discretion to grant to a fiduciary full access to the user's account, partial access, or provide a copy of the digital assets requested. The custodian may charge a fee for disclosure, but may not disclose a digital asset that the user has deleted.
A custodian shall disclose to the fiduciary the content of an electronic communication sent or received by the user, a catalogue of electronic communications, and digital assets of the user if the fiduciary provides certain documentation as specified in the act. If the fiduciary is an agent acting under a power of attorney, then the power of attorney must expressly grant the agent authority over the content of electronic communications sent or received by the user for the custodian to disclose the digital assets.
A custodian may disclose to a conservator the user's catalogue of electronic communications and any digital assets if the conservator is given authority by the court and provides the court order to the custodian. Additionally, a conservator may request the suspension or termination of a user's account for good cause.
A fiduciary may terminate the user's account in writing and such request must be accompanied with certain documents as provided in the act.
A custodian has sixty days to comply with a fiduciary's request for disclosure or account termination. If the custodian does not comply with the request, then the fiduciary may apply to the court to order compliance.
These provisions are identical to provisions contained in SCS/SB 129 (2017) and substantially similar to provisions in HCS/SCS/SBs 946 & 947 (2018) and the truly agreed to and finally passed version of HB 1250 (2018).
JESSI JAMES