SCS/HB 1250 - This act modifies provisions relating to trusts, powers of appointment, gifts in fraud of marital rights, and commercial receivership. The act also establishes the Missouri Fiduciary Access to Digital Assets Act. TRUSTS (Sections 456.006, 456.4-414)
Under this act, a trust which is a health savings account shall be deemed to have been established on the day when the beneficiary of the trust is an eligible individual in the calendar year in which the trust is created.
This provision is substantially similar to a provision contained in HCS/HB 2351 (2018), HB 1650 (2018), CCS/HCS/SB 569 (2018), SCS/SB 942 (2018), HCS/SCS/SBs 946 & 947(2018), and SCS/HCS/HB 427 (2017).
Under current law, a trustee of a trust consisting of property having a total value of less than $100,000 may terminate the trust if the trustee determines that the value of the trust property is insufficient to justify the cost of the administration. This act increases the required value of the trust property to less than $250,000 before the trustee can terminate the trust.
This provision is identical to provisions contained in SCS/SB 942 (2018), HB 1650 (2018), HCS/HB 2351 (2018), CCS/HCS/SB 569 (2018), HCS/SCS/SBs 946 &947 (2018), SCS/HCB 1 (2017), SCS/HCS/HB 427 (2017), and the truly agreed to and finally passed version of SB 128 (2017).
POWERS OF APPOINTMENT (Sections 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 SB 909 (2018).
TRUST PROTECTORS (Sections 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.
Finally, the act provides that when a directed trust grants investment decisions to a person or to an advisory or investment committee then the trustee shall not be liable for any loss resulting from the investment decisions made.
These provisions are identical to provisions in CCS/HCS/SB 569 (2018) and similar to provisions in SB 947 (2018), HCS/SB 909 (2018), HB 1845 (2018), HB 1843 (2018), HCS/HB 2351 (2018), SB 171 (2017), and SB 841 (2016).
MISSOURI FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (Sections 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 substantially similar to provisions in HCS/SCS/SBs 946 & 947 (2018), HCS/SB 909 (2018), and SCS/SB 129 (2017).
GIFTS GIVEN IN FRAUD OF MARITAL RIGHTS (Section 474.150)
Under current law, a gift given by a person in fraud of marital rights may be recovered by the surviving spouse and applied to the payment of the spouse's share of the estate. This act specifies that the surviving spouse may recover the gift made in fraud of the marital rights when the decedent and the surviving spouse were married at the time the gift was made.
This provision is identical to a provision contained in HCS/SCS/SBs 946 & 947 (2018).
MISSOURI COMMERCIAL RECEIVERSHIP ACT (Sections 515.575, 515.635)
Under current law, an order appointing a general receiver shall stay any act to collect, assess, or recover a claim against the debtor. This act provides that the stay shall automatically expire sixty days after the appointment. A stay on an act to obtain possession of estate property from the receiver shall not automatically expire after sixty days.
If there are "insufficient" rather than "sufficient" funds in the estate, which is in receivership, to pay all interests, then interests shall be paid proportionately to each member of the class.
These provisions are identical to a provision in the truly agreed to and finally passed version of SB 128 (2017) and HCB 8 (2017).
JESSI JAMES