SENATE BILL No. 297
1203, 58-1205, 58-1206, 58-1207, 58-1208, 58-1209, 58-1210, 58-1211, 58-2404, 58-
2405, 58-2409, 58-2410, 58-2411, 58-2412, 58-2413, 58-2415, 58-2417, 58-2420, 59-
2295 and 59-2296 and K.S.A. 2001 Supp. 58-1204, 58-12a01, 58-12a02, 58-12a03,
Section 1. (UTC 101) SHORT TITLE. This act may be cited as the
Kansas uniform trust code.
Sec. 2. (UTC 102) SCOPE. This code applies to express trusts,
charitable or noncharitable, and trusts created pursuant to a statute, judg-
ment, or decree that requires the trust to be administered in the manner
of an express trust.
Sec. 3. (UTC 103) DEFINITIONS. As used in this code:
(1) ``Action,'' with respect to an act of a trustee, includes a failure to
(2) ``Beneficiary'' means a person that:
(A) Has a present or future beneficial interest in a trust, vested or
(B) in a capacity other than that of trustee, holds a power of appoint-
ment over trust property.
(3) ``Charitable trust'' means a trust, or portion of a trust, created for
a charitable purpose described in subsection (a) of section 26, and amend-
(4) ``Conservator'' means a person appointed by the court pursuant
to K.S.A. 59-3001 et seq., and amendments thereto, to administer the
estate of a minor or adult individual.
(5) ``Environmental law'' means a federal, state, or local law, rule,
regulation, or ordinance relating to protection of the environment.
(6) ``Guardian'' means a person appointed by the court pursuant to
K.S.A. 59-3001 et seq., and amendments thereto, to make decisions re-
garding the support, care, education, health, and welfare of a minor or
adult individual. The term does not include a guardian ad litem.
(7) ``Interests of the beneficiaries'' means the beneficial interests pro-
vided in the terms of the trust.
(8) ``Jurisdiction,'' with respect to a geographic area, includes a state
(9) ``Person'' means an individual, corporation, business trust, estate,
trust, partnership, limited liability company, association, joint venture,
government; governmental subdivision, agency, or instrumentality; public
corporation, or any other legal or commercial entity.
(10) ``Power of withdrawal'' means a presently exercisable general
power of appointment other than a power exercisable only upon consent
of the trustee or a person holding an adverse interest.
(11) ``Property'' means anything that may be the subject of owner-
ship, whether real or personal, legal or equitable, or any interest therein.
(12) ``Qualified beneficiary'' means a beneficiary who, on the date of
the beneficiary's qualification is determined:
(A) Is a distributee of trust income or principal; or
(B) would be a distributee of trust income or principal if the trust
terminated on that date.
(13) ``Revocable,'' as applied to a trust, means revocable by the settlor
without the consent of the trustee or a person holding an adverse interest.
(14) ``Settlor'' means a person, including a testator, who creates, or
contributes property to, a trust. If more than one person creates or con-
tributes property to a trust, each person is a settlor of the portion of the
trust property attributable to that person's contribution except to the ex-
tent another person has the power to revoke or withdraw that portion.
(15) ``Spendthrift provision'' means a term of a trust which restrains
either voluntary or involuntary transfer of a beneficiary's interest.
(16) ``State'' means a state of the United States, the District of Co-
lumbia, Puerto Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the United States. The
term includes an Indian tribe or band recognized by federal law or for-
mally acknowledged by a state.
(17) ``Terms of a trust'' means the manifestation of the settlor's intent
regarding a trust's provisions as expressed in the trust instrument or as
may be established by other evidence that would be admissible in a ju-
(18) ``Trust instrument'' means an instrument executed by the settlor
that contains terms of the trust, including any amendments thereto.
(19) ``Trustee'' includes an original, additional, and successor trustee,
and a cotrustee.
Sec. 4. (UTC 104) KNOWLEDGE. (a) Subject to subsection (b),
a person has knowledge of a fact if the person:
(1) Has actual knowledge of it;
(2) has received a notice or notification of it; or
(3) from all the facts and circumstances known to the person at the
time in question, has reason to know it.
(b) An organization that conducts activities through employees has
notice or knowledge of a fact involving a trust only from the time the
information was received by an employee having responsibility to act for
the trust, or would have been brought to the employee's attention if the
organization had exercised reasonable diligence. An organization exer-
cises reasonable diligence if it maintains reasonable routines for com-
municating significant information to the employee having responsibility
to act for the trust and there is reasonable compliance with the routines.
Reasonable diligence does not require an employee of the organization
to communicate information unless the communication is part of the in-
dividual's regular duties or the individual knows a matter involving the
trust would be materially affected by the information.
Sec. 5. (UTC 105) DEFAULT AND MANDATORY RULES. (a)
Except as otherwise provided in the terms of the trust, this code governs
the duties and powers of a trustee, relations among trustees and the rights
and interests of a beneficiary.
(b) The terms of a trust prevail over any provision of this code except:
(1) The requirements for creating a trust;
(2) the duty of a trustee to act in good faith and in accordance with
the purposes of the trust;
(3) the requirement that a trust and its terms be for the benefit of its
beneficiaries, and that the trust have a purpose that is lawful, not contrary
to public policy and possible to achieve;
(4) the power of the court to modify or terminate a trust under sec-
tions 31 through 37, and amendments thereto;
(5) the power of the court under section 50, and amendments
thereto, to require, dispense with, or modify or terminate a bond;
(6) the power of the court under subsection (b) of section 56, and
amendments thereto, to adjust a trustee's compensation specified in the
terms of the trust which is unreasonably low or high;
(7) the effect of an exculpatory term under section 83, and amend-
(8) the rights under sections 85 through 88, and amendments thereto,
of a person other than a trustee or beneficiary;
(9) periods of limitation for commencing a judicial proceeding under
section 48, and amendments thereto; and
(10) the power of the court to take such action and exercise such
jurisdiction as may be necessary in the interests of justice.
(c) Notwithstanding any provisions of the Kansas uniform trust code
to the contrary, any trust created by will and admitted to probate shall be
subject to the requirements of chapter 59 of the Kansas Statutes Anno-
Sec 6. (UTC 106) COMMON LAW OF TRUSTS; PRINCIPLES
OF EQUITY. The common law of trusts and principles of equity sup-
plement this code, except to the extent modified by this code or another
statute of this state.
Sec. 7. (UTC 107) GOVERNING LAW. The meaning and effect
of the terms of a trust are determined by:
(1) The law of the jurisdiction designated in the terms unless the
designation of that jurisdiction's law is contrary to the law of the jurisdic-
tion having the most significant relationship to the matter at issue; or
(2) in the absence of a controlling designation in the terms of the
trust, the law of the jurisdiction having the most significant relationship
to the matter at issue.
Sec. 8. (UTC 108) PRINCIPAL PLACE OF ADMINISTRA-
TION. (a) Without precluding other means for establishing a sufficient
connection with the designated jurisdiction, terms of a trust designating
the principal place of administration are valid and controlling if:
(1) A trustee's principal place of business is located in or a trustee is
a resident of the designated jurisdiction; or
(2) all or part of the administration occurs in the designated jurisdic-
(b) A trustee is under a continuing duty to administer the trust at a
place appropriate to its purposes, its administration, and the interests of
(c) Without precluding the right of the court to order, approve, or
disapprove a transfer, the trustee, in furtherance of the duty prescribed
by subsection (b), may transfer the trust's principal place of administration
to another state or to a jurisdiction outside of the United States.
(d) The trustee shall notify the qualified beneficiaries of a proposed
transfer of a trust's principal place of administration not less than 60 days
before initiating the transfer. The notice of proposed transfer must in-
(1) The name of the jurisdiction to which the principal place of ad-
ministration is to be transferred;
(2) the address and telephone number at the new location at which
the trustee can be contacted;
(3) an explanation of the reasons for the proposed transfer;
(4) the date on which the proposed transfer is anticipated to occur;
(5) the date, not less than 60 days after the giving of the notice, by
which the qualified beneficiary must notify the trustee of an objection to
the proposed transfer.
(e) The authority of a trustee under this section to transfer a trust's
principal place of administration terminates if a qualified beneficiary no-
tifies the trustee of an objection to the proposed transfer on or before
the date specified in the notice.
(f) In connection with a transfer of the trust's principal place of ad-
ministration, the trustee may transfer some or all of the trust property to
a successor trustee designated in the terms of the trust or appointed
pursuant to section 52, and amendments thereto.
Sec. 9. (UTC 109) METHODS AND WAIVER OF NOTICE. (a)
Notice to a person under this code or the sending of a document to a
person under this code must be accomplished in a manner reasonably
suitable under the circumstances and likely to result in receipt of the
notice or document. Permissible methods of notice or for sending a doc-
ument include first-class mail, personal delivery, delivery to the person's
last known place of residence or place of business, or a properly directed
(b) Notice otherwise required under this code or a document oth-
erwise required to be sent under this code need not be provided to a
person whose identity or location is unknown to and not reasonably as-
certainable by the trustee.
(c) Notice under this code or the sending of a document under this
code may be waived by the person to be notified or sent the document.
(d) Notice of a judicial proceeding must be given as provided in the
code of civil procedure.
Sec. 10. (UTC 110) OTHERS TREATED AS QUALIFIED
BENEFICIARIES. (a) A charitable organization expressly mandated to
receive distributions under the terms of a trust or a person appointed to
enforce a trust created for the care of an animal or another noncharitable
purpose as provided in section 29 or 30, and amendments thereto, has
the rights of a qualified beneficiary under this code.
(b) The attorney general of this state has the rights of a qualified
beneficiary with respect to a charitable trust having its principal place of
administration in this state.
Sec. 11. (UTC 111) NONJUDICIAL SETTLEMENT AGREE-
MENTS. (a) For purposes of this section, ``interested persons'' means
persons whose consent would be required in order to achieve a binding
settlement were the settlement to be approved by the court.
(b) Except as otherwise provided in subsection (c), interested persons
may enter into a binding nonjudicial settlement agreement with respect
to any matter involving a trust.
(c) A nonjudicial settlement agreement is valid only to the extent it
does not violate a material purpose of the trust and includes terms and
conditions that could be properly approved by the court under this code
or other applicable law.
(d) Matters that may be resolved by a nonjudicial settlement agree-
ment are limited to:
(1) The approval of a trustee's report or accounting;
(2) the resignation or appointment of a trustee and the determination
of a trustee's compensation;
(3) transfer of a trust's principal place of administration; and
(4) liability of a trustee for an action relating to the trust.
(e) Any interested person may request the court to approve a non-
judicial settlement agreement, to determine whether the representation
as provided in article 3 of this code was adequate, and to determine
whether the agreement contains terms and conditions the court could
have properly approved.
Sec. 12. (UTC 112) RULES OF CONSTRUCTION. The rules of
construction that apply in this state to the interpretation of and disposition
of property by will also apply as appropriate to the interpretation of the
terms of a trust and the disposition of the trust property.
Sec. 13. (UTC 201) ROLE OF COURT IN ADMINISTRATION
OF TRUST. (a) The court may intervene in the administration of a trust
to the extent its jurisdiction is invoked by an interested person or as
provided by law.
(b) A trust is not subject to continuing judicial supervision unless
ordered by the court.
(c) A judicial proceeding involving a trust may relate to any matter
involving the trust's administration, including an action for declaratory
judgment pursuant to K.S.A. 60-1701 et seq., and amendments thereto.
Sec. 14. (UTC 202) JURISDICTION OVER TRUSTEE AND
BENEFICIARY. (a) By accepting the trusteeship of a trust having its
principal place of administration in this state or by moving the principal
place of administration to this state, the trustee submits personally to the
jurisdiction of the courts of this state regarding any matter involving the
(b) With respect to their interests in the trust, the beneficiaries of a
trust having its principal place of administration in this state are subject
to the jurisdiction of the courts of this state regarding any matter involving
the trust. By accepting a distribution from such a trust, the recipient
submits personally to the jurisdiction of the courts of this state regarding
any matter involving the trust.
(c) This section does not preclude other methods of obtaining juris-
diction over a trustee, beneficiary, or other person receiving property
from the trust.
Sec. 15. (UTC 203) SUBJECT-MATTER JURISDICTION. The
district court has exclusive jurisdiction of proceedings in this state brought
by a trustee or beneficiary concerning the administration of a trust.
Sec. 16. (UTC 204) VENUE. (a) Except as otherwise provided in
subsection (b), venue for a judicial proceeding involving a trust is in the
county of this state in which the trust's principal place of administration
has been, is or will be located or in the county in which any real property
in which the trust has an interest is located and, if the trust is created by
will and the estate is not yet closed, in the county in which the decedent's
estate is being administered.
(b) If a trust has no trustee, venue for a judicial proceeding for the
appointment of a trustee is in a county of this state in which a beneficiary
resides, in a county in which any trust property is located, and if the trust
is created by will, in the county in which the decedent's estate was or is
Sec. 17. (UTC 301) REPRESENTATION: BASIC EFFECT. (a)
Notice to a person who may represent and bind another person under
this article has the same effect as if notice were given directly to the other
(b) The consent of a person who may represent and bind another
person under this article is binding on the person represented unless the
person represented objects to the representation before the consent
would otherwise have become effective.
(c) Except as otherwise provided in sections 32 and 46, and amend-
ments thereto, a person who under this article may represent a settlor
who lacks capacity may receive notice and give a binding consent on the
Sec. 18. (UTC 302) REPRESENTATION BY HOLDER OF
GENERAL TESTAMENTARY POWER OF APPOINTMENT. To
the extent there is no conflict of interest between the holder of a general
testamentary power of appointment and the persons represented with
respect to the particular question or dispute, the holder may represent
and bind persons whose interests, as permissible appointees, takers in
default, or otherwise, are subject to the power.
Sec. 19. (UTC 303) REPRESENTATION BY FIDUCIARIES
AND PARENTS. To the extent there is no conflict of interest between
the representative and the person represented or among those being rep-
resented with respect to a particular question or dispute:
(1) A conservator may represent and bind the estate that the conser-
(2) a guardian may represent and bind the ward within the scope of
the guardian's powers and duties;
(3) an agent having authority to act with respect to the particular
question or dispute may represent and bind the principal;
(4) a trustee may represent and bind the beneficiaries of the trust;
(5) a personal representative of a decedent's estate may represent and
bind persons interested in the estate; and
(6) a parent may represent and bind the parent's minor or unborn
child if a conservator or guardian for the child has not been appointed.
Sec. 20. (UTC 304) REPRESENTATION BY PERSON HAV-
ING SUBSTANTIALLY IDENTICAL INTEREST. Unless otherwise
represented, a minor, incapacitated, or unborn individual, or a person
whose identity or location is unknown and not reasonably ascertainable,
may be represented by and bound by another having a substantially iden-
tical interest with respect to the particular question or dispute, but only
to the extent there is no conflict of interest between the representative
and the person represented.
Sec. 21. (UTC 305) APPOINTMENT OF REPRESENTATIVE.
(a) If the court or trustee determines that an interest is not represented
under this article, or that the otherwise available representation might be
inadequate, the court may appoint or the trustee may retain a represen-
tative to receive notice, give consent, and otherwise represent, bind, and
act on behalf of a minor, incapacitated, or unborn individual, or a person
whose identity or location is unknown. A representative may be appointed
to represent several persons or interests.
(b) A representative may act on behalf of the individual represented
with respect to any matter arising under this code, whether or not a
judicial proceeding concerning the trust is pending.
(c) In making decisions, a representative may consider general ben-
efit accruing to the living members of the individual's family.
Sec. 22. (UTC 401) METHODS OF CREATING TRUST. A trust
may be created by:
(1) Transfer of property to another person as trustee during the set-
tlor's lifetime or by will or other disposition taking effect upon the settlor's
(2) declaration by the owner of property that the owner holds prop-
erty as trustee, so long as such property would not otherwise pass at the
owner's death by a beneficiary designation to a party other than the trust;
(3) exercise of a power of appointment in favor of a trustee.
Sec. 23. (UTC 402) REQUIREMENTS FOR CREATION. (a) A
trust is created only if:
(1) The settlor has capacity to create a trust;
(2) the settlor indicates an intention to create the trust;
(3) the trust has a definite beneficiary or is:
(A) A charitable trust;
(B) a trust for the care of an animal, as provided in section 29, and
amendments thereto; or
(C) a trust for a noncharitable purpose, as provided in section 30, and
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary.
(b) A beneficiary is definite if the beneficiary can be ascertained now
or in the future, subject to any applicable rule against perpetuities.
(c) A power in a trustee to select a beneficiary from an indefinite class
is valid. If the power is not exercised within a reasonable time, the power
fails and the property subject to the power passes to the persons who
would have taken the property had the power not been conferred.
Sec. 24. (UTC 403) TRUSTS CREATED IN OTHER JURIS-
DICTIONS. A trust not created by will is validly created if its creation
complies with the law of the jurisdiction in which the trust instrument
was executed, or the law of the jurisdiction in which, at the time of cre-
(1) The settlor was domiciled, had a place of abode, or was a national;
(2) a trustee was domiciled or had a place of business; or
(3) any trust property was located.
Sec. 25. (UTC 404) TRUST PURPOSES. A trust may be created
only to the extent its purposes are lawful, not contrary to public policy,
and possible to achieve. A trust and its terms must be for the benefit of
Sec. 26. (UTC 405) CHARITABLE PURPOSES; ENFORCE-
MENT. (a) A charitable trust may be created for the relief of poverty,
the advancement of education or religion, the promotion of health, gov-
ernmental or municipal purposes, or other purposes the achievement of
which is beneficial to the community.
(b) If the terms of a charitable trust do not indicate a particular char-
itable purpose or beneficiary, the court may select one or more charitable
purposes or beneficiaries. The selection must be consistent with the set-
tlor's intention to the extent it can be ascertained.
(c) The settlor of a charitable trust, among others, may maintain a
proceeding to enforce the trust.
Sec. 27. (UTC 406) CREATION OF TRUST INDUCED BY
FRAUD, DURESS, OR UNDUE INFLUENCE. (a) A trust is void to
the extent its creation was induced by fraud, duress, or undue influence.
(b) Any provision in a trust, written or prepared for another person,
that transfers property and that gives the scrivener or the scrivener's par-
ent, children, issue, sibling or spouse any direct or indirect gift is invalid
unless: (1) The scrivener is related to the settlor by blood or marriage; or
(2) it affirmatively appears that the settlor had read and knew the contents
of the trust and had independent legal advice with reference thereto. The
words ``children'' and ``issue'' as used in this section, are defined in K.S.A.
59-501, and amendments thereto.
Sec. 28. (UTC 407) EVIDENCE OF ORAL TRUST. Except as
required by K.S.A. 59-606, and amendments thereto, with respect to tes-
tamentary trusts or K.S.A. 33-105, 33-106 and 58-2401, and amendments
thereto, a trust need not be evidenced by a trust instrument, but the
creation of an oral trust and its terms may be established only by clear
and convincing evidence.
Sec. 29. (UTC 408) TRUST FOR CARE OF ANIMAL. (a) A trust
may be created to provide for the care of an animal alive during the
settlor's lifetime. The trust terminates upon the death of the animal or,
if the trust was created to provide for the care of more than one animal
alive during the settlor's lifetime, upon the death of the last surviving
(b) A trust authorized by this section may be enforced by a person
appointed in the terms of the trust or, if no person is so appointed, by a
person appointed by the court. A person having an interest in the welfare
of the animal may request the court to appoint a person to enforce the
trust or to remove a person appointed.
(c) Property of a trust authorized by this section may be applied only
to its intended use, except to the extent the court determines that the
value of the trust property exceeds the amount required for the intended
use. Except as otherwise provided in the terms of the trust, property not
required for the intended use may be distributed to the settlor, if then
living, otherwise to the settlor's successors in interest.
Sec. 30. (UTC 409) NONCHARITABLE TRUST WITHOUT
ASCERTAINABLE BENEFICIARY. Except as otherwise provided in
section 29, and amendments thereto, or by another statute, the following
(1) A trust may be created for a noncharitable purpose without a
definite or definitely ascertainable beneficiary or for a noncharitable but
otherwise valid purpose to be selected by the trustee. The trust may not
be enforced for more than 21 years.
(2) A trust authorized by this section may be enforced by a person
person appointed by the court.
(3) Property of a trust authorized by this section may be applied only
Sec. 31. (UTC 410) MODIFICATION OR TERMINATION OF
TRUST; PROCEEDINGS FOR APPROVAL OR DISAPPROVAL.
(a) In addition to the methods of termination prescribed by sections 32
through 35, and amendments thereto, a trust terminates to the extent the
trust is revoked or expires pursuant to its terms, no purpose of the trust
remains to be achieved, or the purposes of the trust have become unlaw-
ful, contrary to public policy, or impossible to achieve.
(b) A proceeding to approve or disapprove a proposed modification
or termination under sections 32 through 37, and amendments thereto,
or trust combination or division under section 38, and amendments
thereto, may be commenced by a trustee or qualified beneficiary, and a
proceeding to approve or disapprove a proposed modification or termi-
nation under section 32, and amendments thereto, may be commenced
by the settlor. The settlor of a charitable trust may maintain a proceeding
to modify the trust under section 34, and amendments thereto.
Sec. 32. (UTC 411) MODIFICATION OR TERMINATION OF
NONCHARITABLE IRREVOCABLE TRUST BY CONSENT. (a) A
noncharitable irrevocable trust may be modified or terminated upon con-
sent of the settlor and all qualified beneficiaries, even if the modification
or termination is inconsistent with a material purpose of the trust. A
settlor's power to consent to a trust's termination may be exercised by an
agent under a power of attorney only to the extent expressly authorized
by the power of attorney or the terms of the trust; by the settlor's con-
servator with the approval of the court supervising the conservatorship if
an agent is not so authorized; or by the settlor's guardian with the approval
of the court supervising the guardianship if an agent is not so authorized
and a conservator has not been appointed.
(b) A noncharitable irrevocable trust may be terminated upon con-
sent of all of the qualified beneficiaries if the court concludes that con-
tinuance of the trust is not necessary to achieve any material purpose of
the trust. A noncharitable irrevocable trust may be modified upon consent
of all of the qualified beneficiaries if the court concludes that modification
is not inconsistent with a material purpose of the trust.
(c) A spendthrift provision in the terms of the trust is presumed to
constitute a material purpose of the trust.
(d) Upon termination of a trust under subsection (a) or (b), the trus-
tee shall distribute the trust property as agreed by the qualified benefi-
(e) If not all of the qualified beneficiaries consent to a proposed mod-
ification or termination of the trust under subsection (a) or (b), the mod-
ification or termination may be approved by the court if the court is
(1) If all of the qualified beneficiaries had consented, the trust could
have been modified or terminated under this section; and
(2) the interests of a qualified beneficiary who does not consent will
be adequately protected.
Sec. 33. (UTC 412) MODIFICATION OR TERMINATION BE-
CAUSE OF UNANTICIPATED CIRCUMSTANCES OR INABIL-
ITY TO ADMINISTER TRUST EFFECTIVELY. (a) The court may
modify the administrative or dispositive terms of a trust or terminate the
trust if, because of circumstances not anticipated by the settlor, modifi-
cation or termination will further the purposes of the trust. To the extent
practicable, the modification must be made in accordance with the set-
tlor's probable intention.
(b) The court may modify the administrative terms of a trust if con-
tinuation of the trust on its existing terms would be impracticable or
wasteful or impair the trust's administration.
(c) Upon termination of a trust under this section, the trustee shall
distribute the trust property in a manner consistent with the purposes of
Sec. 34. (UTC 413) CY PRES. If a charitable trust is or becomes
illegal or impossible or impracticable of fulfillment or if a devise or be-
quest for charity, at the time it was intended to become effective is illegal
or impossible or impracticable of fulfillment, and if the settlor, manifested
a general intention to devote the property to charity, any judge, on ap-
plication of any trustee, any interested party or the attorney general, may
order an administration of the trust, as nearly as possible to fulfill the
manifested general charitable intention of the settlor. In every such pro-
ceeding, the attorney general, as representative of the public interest,
shall be notified and given an opportunity to be heard. The provisions of
this act shall not be applicable if the settlor has provided, either directly
or indirectly, for an alternative plan in the event the charitable trust is or
becomes illegal or impossible or impracticable of fulfillment. If the alter-
native plan is also a charitable trust, the intention shown in the original
plan shall prevail in the application of this act.
(b) If a federal estate tax deduction is not allowable at the time of a
decedent's death because of the failure of an interest in property which
passes from the decedent to a person, or for a use, described in section
2055(a) of the federal internal revenue code of 1986, as in effect on
December 31, 2000, to meet the requirements of section 170(f)(3)(B) or
2055(e)(2) of the federal internal revenue code of 1986, as in effect on
December 31, 2000, then in order that such deduction shall nevertheless
be allowable under section 2055(a) of the federal internal revenue code
of 1986, as in effect on December 31, 2000, any judge, on application of
any trustee, or any interested party may:
(1) With the written consent of the charitable beneficiaries, the non-
charitable beneficiaries not under any legal disability and duly appointed
guardians or guardians ad litem acting on behalf of any beneficiaries un-
der legal disability or conservator; or
(2) upon a finding that the interest of such beneficiaries is substan-
tially preserved, order a change to the trust by reformation, amendment,
construction or otherwise, which changes a reformable interest into a
qualified interest within the meaning of section 2055(e)(3) of the federal
internal revenue code of 1986, as in effect on December 31, 2000. In
every such proceeding, the attorney general, as representative of the pub-
lic interest, shall be notified and given an opportunity to be heard.
(c) As used in this act ``impracticable of fulfillment'' includes, but is
not limited to, the failure of any charitable trust, testamentary or inter
vivos, including, without limitation, trusts described in section 509 of the
federal internal revenue code of 1986, as in effect on December 31, 2000,
and charitable remainder trusts described in section 664 of the federal
internal revenue code of 1986, as in effect on December 31, 2000, to
include, if required to do so by section 508(e) or section 4947(a) of the
the provisions relating to governing instruments set forth in section 508(e)
of the federal internal revenue code of 1986, as in effect on December
(d) The provisions of this section shall be effective as to all trusts not
construed prior to the effective date of this act.
Sec. 35. (UTC 414) TERMINATION OF UNECONOMIC
TRUST. (a) After notice to the qualified beneficiaries, the trustee of a
trust consisting of trust property having a total value less than $100,000
may terminate the trust if the trustee concludes that the value of the trust
property is insufficient to justify the cost of administration.
(b) The court may modify or terminate a trust or remove the trustee
and appoint a different trustee if it determines that the value of the trust
(d) This section does not apply to an easement for conservation or
(e) This section does not apply to any trust if its assets are distribut-
able to the trustee or anyone the trustee is obligated to support.
Sec. 36. (UTC 415) REFORMATION TO CORRECT MIS-
TAKES. The court may reform the terms of a trust, even if unambiguous,
to conform the terms to the settlor's intention if it is proved by clear and
convincing evidence that both the settlor's intent and the terms of the
trust were affected by a mistake of fact or law, whether in expression or
Sec. 37. (UTC 416) MODIFICATION TO ACHIEVE SET-
TLOR'S TAX OBJECTIVES. To achieve the settlor's tax objectives, the
court may modify the terms of a trust in a manner that is not contrary to
the settlor's probable intention. The court may provide that the modifi-
cation has retroactive effect.
Sec. 38. (UTC 417) COMBINATION AND DIVISION OF
TRUSTS. (a) After notice to the qualified beneficiaries, a trustee may
combine two or more trusts into a single trust or divide a trust into two
or more separate trusts, if the result does not impair rights of any bene-
ficiary or adversely affect achievement of the purposes of the trust. The
trustee may make a division under this section by:
(1) Giving written notice of the division, not later than the 30th day
before the date of a division under this subsection, to each qualified ben-
(2) executing a written instrument, acknowledged before a notary
public or other person authorized to take acknowledgments of convey-
ances of real estate stating that the trust has been divided pursuant to
this section and that the notice requirements of this subsection have been
(b) A trustee, in the written instrument dividing a trust, shall allocate
trust property among the separate trusts on a fractional basis by identi-
fying the assets and liabilities passing to each separate trust, or on any
other reasonable basis. The trustee shall allocate undesignated trust prop-
erty received after the trustee has divided the trust into separate trusts
in the manner provided by the written instrument dividing the trust, or,
in the absence of a provision in the written instrument, in a manner
determined by the trustee.
(c) The trustee may combine two or more trusts under this section
(1) Giving a written notice of the combination, not later than the 30th
day before the effective date of the combination, to each qualified ben-
ances of real estate stating that the trust has been combined pursuant to
(d) The trustee may divide or combine a testamentary trust after the
will establishing the trust has been admitted to probate, even if the trust
will not be funded until a later date. The trustee may divide or combine
any other trust before it is funded if the instrument establishing the trust
is not revocable at the time of the division or combination.
Sec. 39. REFERENCE TO WRITTEN STATEMENT OR
LIST. A trust instrument which establishes an inter vivos trust and which
directs the trustee to distribute trust assets may refer to a separate written
statement or list of items of personal property, other than money, evi-
dences of debt, documents of title, securities, and properties used in trade
or business, which are assets of the trust estate, and may direct the trustee
to make distribution of such items as indicated in the written statement
or list. The trustee may distribute such items in accordance with the
written statement or list. Such written statement or list either must be in
the handwriting of the settlor or be signed by the settlor, and must de-
scribe the items with reasonable certainty. The writing may be referred
to in the trust instrument as one to be in existence at the time of the
settlor's death, prepared before or after execution of the trust instrument,
and altered by the settlor after its preparation. Transfer of items of per-
sonal property pursuant to this section shall not be considered testamen-
tary or be invalidated due to nonconformity with the provisions of chapter
59 of the Kansas Statutes Annotated, and amendments thereto.
Sec. 40. (UTC 501) RIGHTS OF BENEFICIARY'S CREDITOR
OR ASSIGNEE. To the extent a beneficiary's interest is not protected
by a spendthrift provision, the court may authorize a creditor or assignee
of the beneficiary to reach the beneficiary's interest by attachment of
present or future distributions to or for the benefit of the beneficiary or
other means. The court may limit the award to such relief as is appropriate
under the circumstances.
Sec. 41. (UTC 502) SPENDTHRIFT PROVISION. (a) A spend-
thrift provision is valid.
(b) A term of a trust providing that the interest of a beneficiary is
held subject to a ``spendthrift trust,'' or words of similar import, is suffi-
cient to restrain both voluntary and involuntary transfer of the benefici-
(c) A beneficiary may not transfer an interest in a trust in violation of
a valid spendthrift provision and, except as otherwise provided in this
article, a creditor or assignee of the beneficiary may not reach the interest
or a distribution by the trustee before its receipt by the beneficiary.
(d) Whether or not a trust contains a spendthrift provision, a creditor
of a beneficiary may not compel a distribution that is subject to the trus-
Sec. 42. (UTC 505) CREDITOR'S CLAIM AGAINST SET-
TLOR. (a) Except as provided by K.S.A. 33-101 et seq. and 33-201 et
seq., and amendments thereto, whether or not the terms of a trust contain
a spendthrift provision, the following rules apply:
(1) During the lifetime of the settlor, the property of a revocable trust
is subject to claims of the settlor's creditors.
(2) With respect to an irrevocable trust, a creditor or assignee of the
settlor may reach the maximum amount that can be distributed to or for
the settlor's benefit. If a trust has more than one settlor, the amount the
creditor or assignee of a particular settlor may reach may not exceed the
settlor's interest in the portion of the trust attributable to that settlor's
(3) After the death of a settlor, and subject to the settlor's right to
direct the source from which liabilities will be paid, the property of a trust
that was revocable at the settlor's death is subject to claims of the settlor's
creditors, costs of administration of the settlor's estate, the expenses of
the settlor's funeral and disposal of remains, the homestead, homestead
allowance, all elective share rights of the surviving spouse and statutory
allowance to a surviving spouse and children to the extent the settlor's
probate estate is inadequate to satisfy those claims, costs, expenses, and
(b) For purposes of this section:
(1) During the period the power may be exercised, the holder of a
power of withdrawal is treated in the same manner as the settlor of a
revocable trust to the extent of the property subject to the power; and
(2) upon the lapse, release, or waiver of the power, the holder is
treated as the settlor of the trust only to the extent the value of the
property affected by the lapse, release, or waiver exceeds the greater of
the amount specified in section 2041(b)(2) or 2514(e) of the federal in-
ternal revenue code of 1986, as in effect on December 31, 2000, or section
2503(b) of the federal internal revenue code of 1986, as in effect on
December 31, 2000.
Sec. 43. (UTC 506) OVERDUE DISTRIBUTION. Whether or
not a trust contains a spendthrift provision, a creditor or assignee of a
beneficiary may reach a mandatory distribution of income or principal,
including a distribution upon termination of the trust, if the trustee has
not made the distribution to the beneficiary within a reasonable time after
the mandated distribution date.
Sec. 44. (UTC 507) PERSONAL OBLIGATIONS OF TRUS-
TEE. Trust property is not subject to personal obligations of the trustee,
even if the trustee becomes insolvent or bankrupt.
Sec. 45. (UTC 601) CAPACITY OF SETTLOR OF REVOCA-
BLE TRUST. The capacity required to create, amend, revoke, or add
property to a revocable trust, or to direct the actions of the trustee of a
revocable trust, is the same as that required to make a will.
Sec. 46. (UTC 602) REVOCATION OR AMENDMENT OF
REVOCABLE TRUST. (a) Unless the terms of a trust expressly provide
that the trust is irrevocable, the settlor may revoke or amend the trust.
This subsection does not apply to a trust created under an instrument
executed before the effective date of this code.
(b) If a revocable trust is created or funded by more than one settlor:
(1) To the extent the trust consists of community property, the trust
may be revoked by either spouse acting alone but may be amended only
by joint action of both spouses; and
(2) to the extent the trust consists of property other than community
property, each settlor may revoke or amend the trust with regard to the
portion of the trust property attributable to that settlor's contribution.
(c) The settlor may revoke or amend a revocable trust:
(1) By substantial compliance with a method provided in the terms
of the trust; or
(2) if the terms of the trust do not provide a method or the method
provided in the terms is not expressly made exclusive, by:
(A) A later will or codicil that expressly refers to the trust or specif-
ically devises property that would otherwise have passed according to the
terms of the trust; or
(B) any other method manifesting clear and convincing evidence of
the settlor's intent.
(d) Upon revocation of a revocable trust, the trustee shall deliver the
trust property as the settlor directs.
(e) A settlor's powers with respect to revocation, amendment, or dis-
tribution of trust property may be exercised by an agent under a power
of attorney only to the extent expressly authorized by the terms of the
trust or the power.
(f) A conservator of the settlor may exercise a settlor's powers with
respect to revocation, amendment, or distribution of trust property only
with the approval of the court supervising the conservatorship.
(g) A trustee who does not know that a trust has been revoked or
amended is not liable to the settlor or settlor's successors in interest for
distributions made and other actions taken on the assumption that the
trust had not been amended or revoked.
Sec. 47. (UTC 603) SETTLOR'S POWERS; POWERS OF
WITHDRAWAL. (a) While a trust is revocable and the settlor has ca-
pacity to revoke the trust, rights of the beneficiaries are subject to the
control of, and the duties of the trustee are owed exclusively to, the set-
(b) If a revocable trust has more than one settlor, the duties of the
trustee are owed to all of the settlors having capacity to revoke the trust.
(c) During the period the power may be exercised, the holder of a
power of withdrawal has the rights of a settlor of a revocable trust under
this section to the extent of the property subject to the power.
Sec. 48. (UTC 604) LIMITATION ON ACTION CONTESTING
VALIDITY OF REVOCABLE TRUST; DISTRIBUTION OF
TRUST PROPERTY. (a) A person may commence a judicial proceeding
to contest the validity of a trust that was revocable at the settlor's death
within the earlier of:
(1) One year after the settlor's death; or
(2) four months after the trustee sent the person a copy of the trust
instrument and a notice informing the person of the trust's existence, of
the trustee's name and address, and of the time allowed for commencing
(b) Upon the death of the settlor of a trust that was revocable at the
settlor's death, the trustee may proceed to distribute the trust property
in accordance with the terms of the trust. The trustee is not subject to
liability for doing so unless:
(1) The trustee knows of a pending judicial proceeding contesting the
validity of the trust; or
(2) a potential contestant has notified the trustee of a possible judicial
proceeding to contest the trust and a judicial proceeding is commenced
within 60 days after the contestant sent the notification.
(c) A beneficiary of a trust that is determined to have been invalid is
liable to return any distribution received.
Sec. 49. (UTC 701) ACCEPTING OR DECLINING TRUSTEE-
SHIP. (a) Except as otherwise provided in subsection (c), a person des-
ignated as trustee accepts the trusteeship:
(1) By substantially complying with a method of acceptance provided
in the terms of the trust; or
provided in the terms is not expressly made exclusive, by accepting de-
livery of the trust property, exercising powers or performing duties as
trustee, or otherwise indicating acceptance of the trusteeship.
(b) A person designated as trustee who has not yet accepted the trus-
teeship may reject the trusteeship. A designated trustee who does not
accept the trusteeship within a reasonable time after knowing of the des-
ignation is deemed to have rejected the trusteeship.
(c) A person designated as trustee, without accepting the trusteeship,
(1) Act to preserve the trust property if, within a reasonable time after
acting, the person sends a rejection of the trusteeship to the settlor or, if
the settlor is dead or lacks capacity, to a qualified beneficiary; and
(2) inspect or investigate trust property to determine potential liabil-
ity under environmental or other law or for any other purpose.
Sec. 50. (UTC 702) TRUSTEE'S BOND. (a) A trustee shall give
bond to secure performance of the trustee's duties unless otherwise
waived or modified by the terms of the trust.
(b) The court may specify the amount of a bond, its liabilities, and
whether sureties are necessary. The court may modify or terminate a
bond at any time.
(c) A regulated financial-service institution qualified to do trust busi-
ness in this state need not give bond, even if required by the terms of the
Sec. 51. (UTC 703) COTRUSTEES. (a) Cotrustees who are unable
to reach a unanimous decision may act by majority decision.
(b) If a vacancy occurs in a cotrusteeship, the remaining cotrustees
may act for the trust.
(c) A cotrustee must participate in the performance of a trustee's
function unless the cotrustee is unavailable to perform the function be-
cause of absence, illness, disqualification under other law, or other tem-
porary incapacity or the cotrustee has properly delegated the performance
of the function to another trustee.
(d) If a cotrustee is unavailable to perform duties because of absence,
illness, disqualification under other law, or other temporary incapacity,
and prompt action is necessary to achieve the purposes of the trust or to
avoid injury to the trust property, the remaining cotrustee or a majority
of the remaining cotrustees may act for the trust.
(e) A trustee may not delegate to a cotrustee the performance of a
function the settlor reasonably expected the trustees to perform jointly.
Unless a delegation was irrevocable, a trustee may revoke a delegation
(f) Except as otherwise provided in subsection (g), a trustee who does
not join in an action of another trustee is not liable for the action.
(g) Each trustee shall exercise reasonable care to:
(1) Prevent a cotrustee from committing a breach of trust; and
(2) compel a cotrustee to redress a breach of trust.
(h) A dissenting trustee who joins in an action at the direction of the
majority of the trustees and who notified any cotrustee of the dissent, in
writing, at or before the time of the action is not liable for the action.
Sec. 52. (UTC 704) VACANCY IN TRUSTEESHIP; APPOINT-
MENT OF SUCCESSOR. (a) A vacancy in a trusteeship occurs if:
(1) A person designated as trustee rejects the trusteeship;
(2) a person designated as trustee cannot be identified or does not
(3) a trustee resigns;
(4) a trustee is disqualified or removed;
(5) a trustee dies; or
(6) a guardian or conservator is appointed for an individual serving as
(b) If one or more cotrustees remain in office, a vacancy in a trus-
teeship need not be filled. A vacancy in a trusteeship must be filled if the
trust has no remaining trustee.
(c) A vacancy in a trusteeship of a noncharitable trust that is required
to be filled must be filled in the following order of priority:
(1) By a person designated in the terms of the trust to act as successor
(2) by a person appointed by unanimous agreement of the qualified
(3) by a person appointed by the court.
(d) A vacancy in a trusteeship of a charitable trust that is required to
be filled must be filled in the following order of priority:
(2) by a person selected by the charitable organizations expressly des-
ignated to receive distributions under the terms of the trust if the attorney
general concurs in the selection; or
(e) Whether or not a vacancy in a trusteeship exists or is required to
be filled, the court may appoint an additional trustee or special fiduciary
whenever the court considers the appointment necessary for the admin-
istration of the trust.
Sec. 53. (UTC 705) RESIGNATION OF TRUSTEE. (a) A trustee
(1) Upon at least 30 days' notice to the qualified beneficiaries and all
(2) with the approval of the court.
(b) In approving a resignation, the court may issue orders and impose
conditions reasonably necessary for the protection of the trust property.
(c) Any liability of a resigning trustee or of any sureties on the trus-
tee's bond for acts or omissions of the trustee is not discharged or affected
by the trustee's resignation.
Sec. 54. (UTC 706) REMOVAL OF TRUSTEE. (a) The settlor, if
living, a cotrustee, or a qualified beneficiary may request the court to
remove a trustee, or a trustee may be removed by the court on its own
(b) The court may remove a trustee if:
(1) The trustee has committed a breach of trust;
(2) lack of cooperation among cotrustees substantially impairs the ad-
ministration of the trust;
(3) because of unfitness, unwillingness, or persistent failure of the
trustee to administer the trust effectively, the court determines that re-
moval of the trustee best serves the interests of the beneficiaries and is
consistent with the terms of the trust; or
(4) there has been a substantial change of circumstances and the
court finds that removal of the trustee best serves the interests of all of
the beneficiaries, is consistent with the terms of the trust, is not incon-
sistent with a material purpose of the trust, and a suitable cotrustee or
successor trustee is available.
(c) Pending a final decision on a request to remove a trustee, or in
lieu of or in addition to removing a trustee, the court may order such
appropriate relief under subsection (b) of section 76, and amendments
thereto, as may be necessary to protect the trust property or the interests
of the beneficiaries.
Sec. 55. (UTC 707) DELIVERY OF PROPERTY BY FORMER
TRUSTEE. (a) Unless a cotrustee remains in office or the court other-
wise orders, and until the trust property is delivered to a successor trustee
or other person entitled to it, a trustee who has resigned or been removed
has the duties of a trustee and the powers necessary to protect the trust
(b) A trustee who has resigned or been removed shall proceed ex-
peditiously to deliver the trust property within the trustee's possession to
the cotrustee, successor trustee, or other person entitled to it.
Sec. 56. (UTC 708) COMPENSATION OF TRUSTEE. (a) If the
terms of a trust do not specify the trustee's compensation, a trustee is
entitled to compensation that is reasonable under the circumstances.
(b) If the terms of a trust specify the trustee's compensation, the
trustee is entitled to be compensated as provided, except as such com-
pensation may be increased or decreased upon approval by the trustee
and by unanimous consent of the qualified beneficiaries who do not have
a conflict of interest.
(c) If the terms of a trust specify the trustee's compensation, the
trustee is entitled to be compensated as specified, but the court may allow
more or less compensation if:
(1) The duties of the trustee are substantially different from those
contemplated when the trust was created; or
(2) the compensation specified by the terms of the trust would be
unreasonably low or high.
Sec. 57. (UTC 709) REIMBURSEMENT OF EXPENSES. (a) A
trustee is entitled to be reimbursed out of the trust property, with interest
as appropriate, for:
(1) Expenses that were properly incurred in the administration of the
(2) to the extent necessary to prevent unjust enrichment of the trust,
expenses that were not properly incurred in the administration of the
(b) An advance by the trustee of money for the protection of the trust
gives rise to a lien against trust property to secure reimbursement with
Sec. 58. (UTC 801) DUTY TO ADMINISTER TRUST. Upon ac-
ceptance of a trusteeship, the trustee shall administer the trust in good
faith, in accordance with its terms and purposes and the interests of the
beneficiaries, and in accordance with this code.
Sec. 59. (UTC 802) DUTY OF LOYALTY. (a) A trustee shall ad-
minister the trust consistent with the terms of the trust and solely in the
interests of the beneficiaries.
(b) Subject to the rights of persons dealing with or assisting the trus-
tee as provided in section 87, and amendments thereto, a sale, encum-
brance, or other transaction involving the investment or management of
trust property entered into by the trustee for the trustee's own personal
account or which is otherwise affected by a conflict between the trustee's
fiduciary and personal interests is voidable by a beneficiary affected by
the transaction unless:
(1) The transaction was authorized by the terms of the trust;
(2) the transaction was approved by the court;
(3) the beneficiary did not commence a judicial proceeding within
the time allowed by section 80, and amendments thereto;
(4) the beneficiary consented to the trustee's conduct, ratified the
transaction, or released the trustee in compliance with section 84, and
(5) the transaction involves a contract entered into or claim acquired
by the trustee before the person became or contemplated becoming trus-
(c) A sale, encumbrance, or other transaction involving the invest-
ment or management of trust property is presumed to be affected by a
conflict between personal and fiduciary interests if it is entered into by
the trustee with:
(1) The trustee's spouse;
(2) the trustee's descendants, siblings, parents, or their spouses;
(3) an agent or attorney of the trustee; or
(4) a corporation or other person or enterprise in which the trustee,
or a person that owns a significant interest in the trustee, has an interest
that might affect the trustee's best judgment.
(d) A transaction between a trustee and a beneficiary that does not
concern trust property but that occurs during the existence of the trust
or while the trustee retains significant influence over the beneficiary and
from which the trustee obtains an advantage is voidable by the beneficiary
unless the trustee establishes that the transaction was fair to the benefi-
(e) A transaction not concerning trust property in which the trustee
engages in the trustee's individual capacity involves a conflict between
personal and fiduciary interests if the transaction concerns an opportunity
properly belonging to the trust.
(f) An investment by a trustee in securities of an investment company
or investment trust to which the trustee, or its affiliate, provides services
in a capacity other than as trustee is not presumed to be affected by a
conflict between personal and fiduciary interests if the investment com-
plies with the prudent investor rule of article 9 of this code. The trustee
may be compensated by the investment company or investment trust for
providing those services out of fees charged to the trust if the trustee at
least annually notifies the persons entitled under section 70, and amend-
ments thereto, to receive a copy of the trustee's annual report of the rate,
formula or method by which the compensation was determined.
(g) In voting shares of stock or in exercising powers of control over
similar interests in other forms of enterprise, the trustee shall act in the
best interests of the beneficiaries and consistent with the terms of the
trust. If the trust is the sole owner of a corporation or other form of
enterprise, the trustee shall elect or appoint directors or other managers
who will manage the corporation or enterprise in the best interests of the
(h) This section does not preclude the following transactions, if fair
to the beneficiaries:
(1) An agreement between a trustee and a beneficiary relating to the
appointment or compensation of the trustee;
(2) payment of reasonable compensation to the trustee;
(3) a transaction between a trust and another trust, decedent's estate,
or conservatorship of which the trustee is a fiduciary or in which a ben-
eficiary has an interest;
(4) a deposit of trust money in a regulated financial-service institution
operated by the trustee; or
(5) an advance by the trustee of money for the protection of the trust.
(i) The court may appoint a special fiduciary to make a decision with
respect to any proposed transaction that might violate this section if en-
tered into by the trustee.
Sec. 60. (UTC 803) IMPARTIALITY. If a trust has two or more
beneficiaries, the trustee shall act impartially in investing, managing, and
distributing the trust property, giving due regard to the beneficiaries'
Sec. 61. (UTC 804) PRUDENT ADMINISTRATION. A trustee
shall administer the trust as a prudent person would, by considering the
purposes, terms, distributional requirements, and other circumstances of
the trust. In satisfying this standard, the trustee shall exercise reasonable
care, skill, and caution.
Sec. 62. (UTC 805) COSTS OF ADMINISTRATION. In admin-
istering a trust, the trustee may incur only costs that are reasonable in
relation to the trust property, the purposes of the trust, and the skills of
Sec. 63. (UTC 806) TRUSTEE'S SKILLS. A trustee who has spe-
cial skills or expertise, or is named trustee in reliance upon the trustee's
representation that the trustee has special skills or expertise, shall use
those special skills or expertise.
Sec. 64. (UTC 807) DELEGATION BY TRUSTEE. (a) A trustee
may delegate duties and powers, other than investment and management
functions, that a prudent trustee of comparable skills could properly del-
egate under the circumstances. The trustee shall exercise reasonable care,
skill, and caution in:
(1) Selecting an agent;
(2) establishing the scope and terms of the delegation, consistent with
the purposes and terms of the trust; and
(3) periodically reviewing the agent's actions in order to monitor the
agent's performance and compliance with the terms of the delegation.
(b) A trustee may delegate investment and management functions in
accord with K.S.A. 2000 Supp. 58-24a01 et seq., and amendments thereto.
(c) In performing a delegated function, an agent owes a duty to the
trust to exercise reasonable care to comply with the terms of the dele-
(d) A trustee who complies with subsection (a) is not liable to the
beneficiaries or to the trust for an action of the agent to whom the func-
tion was delegated.
(e) By accepting a delegation of powers or duties from the trustee of
a trust that is subject to the law of this state, an agent submits to the
jurisdiction of the courts of this state.
Sec. 65. (UTC 808) POWERS TO DIRECT. (a) While a trust is
revocable, the trustee may follow a direction of the settlor that is contrary
to the terms of the trust.
(b) If the terms of a trust confer upon a person other than the settlor
of a revocable trust power to direct certain actions of the trustee, the
trustee shall act in accordance with an exercise of the power unless the
attempted exercise is manifestly contrary to the terms of the trust or the
trustee knows the attempted exercise would constitute a serious breach
of a fiduciary duty that the person holding the power owes to the bene-
ficiaries of the trust.
(c) The terms of a trust may confer upon a trustee or other person a
power to direct the modification or termination of the trust.
(d) A person, other than a beneficiary, who holds a power to direct
is presumptively a fiduciary who, as such, is required to act in good faith
with regard to the purposes of the trust and the interests of the benefi-
ciaries. The holder of a power to direct is liable for any loss that results
from breach of a fiduciary duty.
Sec. 66. (UTC 809) CONTROL AND PROTECTION OF
TRUST PROPERTY. A trustee shall take reasonable steps to take con-
trol of and protect the trust property.
Sec. 67. (UTC 810) RECORDKEEPING AND IDENTIFICA-
TION OF TRUST PROPERTY. (a) A trustee shall keep adequate re-
cords of the administration of the trust.
(b) A trustee shall keep trust property separate from the trustee's own
(c) Except as otherwise provided in subsection (d), a trustee shall
cause the trust property to be designated so that the interest of the trust,
to the extent feasible, appears in records maintained by a party other than
a trustee or beneficiary.
(d) If the trustee maintains records clearly indicating the respective
interests, a trustee may invest as a whole the property of two or more
(e) Any estate in real property may be acquired in the trust name.
Title acquired in the trust name may be conveyed only in the trust name.
Sec. 68. (UTC 811) ENFORCEMENT AND DEFENSE OF
CLAIMS. A trustee shall take reasonable steps to enforce claims of the
trust and to defend claims against the trust.
Sec. 69. (UTC 812) COLLECTING TRUST PROPERTY. A trus-
tee shall take reasonable steps to compel a former trustee or other person
to deliver trust property to the trustee, and to redress a breach of trust
known to the trustee to have been committed by a former trustee.
Sec 70. (UTC 813) DUTY TO INFORM AND REPORT. (a) A
trustee shall keep the qualified beneficiaries of the trust reasonably in-
formed about the administration of the trust and of the material facts
necessary for them to protect their interests. Unless unreasonable under
the circumstances, a trustee shall promptly respond to a qualified bene-
ficiary's request for information related to the administration of the trust.
(b) A trustee:
(1) Upon request of a qualified beneficiary, shall promptly furnish to
the qualified beneficiary a copy of the trust instrument;
(2) within 60 days after accepting a trusteeship, shall notify the qual-
ified beneficiaries of the acceptance and of the trustee's name, address,
and telephone number;
(3) within 60 days after the date the trustee acquires knowledge of
the creation of an irrevocable trust, or the date the trustee acquires knowl-
edge that a formerly revocable trust has become irrevocable, whether by
the death of the settlor or otherwise, shall notify the qualified benefici-
aries of the trust's existence, of the identity of the settlor or settlors, of
the right to request a copy of the trust instrument and of the right to a
trustee's report as provided in subsection (c); and
(4) shall notify the qualified beneficiaries in advance of any change
in the method or rate of the trustee's compensation.
(c) A trustee shall send to the distributees or permissible distributees
of trust income or principal, and to other qualified beneficiaries who
request it, at least annually and at the termination of the trust, a report
of the trust property including liabilities, receipts and disbursements, in-
cluding the source and amount of the trustee's compensation, a listing of
the trust assets and, if feasible, their respective market values, and if
requested, the trust's association of investment management and research
compliant rate of return. Upon a vacancy in a trusteeship, unless a co-
trustee remains in office, a report must be sent to the qualified benefi-
ciaries by the former trustee. A personal representative, conservator, or
guardian may send the qualified beneficiaries a report on behalf of a
deceased or incapacitated trustee.
(d) A qualified beneficiary may waive the right to a trustee's report
or other information otherwise required to be furnished under this sec-
tion. A qualified beneficiary, with respect to future reports and other
information, may withdraw a waiver previously given.
(e) The provisions of this section are inapplicable as to notice to per-
sons other than a surviving spouse so long as a surviving spouse is or may
be entitled to receive income or principal distributions from a trust, or
holds any power of appointment therein, and where any or all qualified
beneficiaries are the issue of the surviving spouse.
Sec. 71. (UTC 814) DISCRETIONARY POWERS. Notwithstand-
ing the breadth of discretion granted to a trustee in the terms of the trust,
including the use of such terms as ``absolute,'' ``sole,'' or ``uncontrolled,''
the trustee shall exercise a discretionary power in good faith and in ac-
cordance with the terms and purposes of the trust and the interests of
Sec 72. (UTC 815) GENERAL POWERS OF TRUSTEE. (a) A
trustee, without authorization by the court, may exercise:
(1) Powers conferred by the terms of the trust; or
(2) except as limited by the terms of the trust:
(A) All powers over the trust property which an unmarried competent
owner has over individually owned property;
(B) any other powers appropriate to achieve the proper investment,
management, and distribution of the trust property; and
(C) any other powers conferred by this code.
(b) The exercise of a power is subject to the fiduciary duties pre-
scribed by this article.
Sec. 73. (UTC 816) SPECIFIC POWERS OF TRUSTEE. With-
out limiting the authority conferred by section 72, and amendments
thereto, a trustee may:
(1) Collect trust property and accept or reject additions to the trust
property from a settlor or any other person;
(2) acquire or sell property, for cash or on credit, at public or private
(3) exchange, partition, or otherwise change the character of trust
(4) deposit trust money in an account in a regulated financial-service
(5) borrow money, with or without security, and mortgage or pledge
trust property for a period within or extending beyond the duration of
(6) with respect to an interest in a proprietorship, partnership, limited
liability company, business trust, corporation, or other form of business
or enterprise, continue the business or other enterprise and take any
action that may be taken by shareholders, members, or property owners,
including merging, dissolving, or otherwise changing the form of business
organization or contributing additional capital;
(7) with respect to stocks or other securities, exercise the rights of an
absolute owner, including the right to:
(A) Vote, or give proxies to vote, with or without power of substitu-
tion, or enter into or continue a voting trust agreement;
(B) hold a security in the name of a nominee or in other form without
disclosure of the trust so that title may pass by delivery;
(C) pay calls, assessments, and other sums chargeable or accruing
against the securities, and sell or exercise stock subscription or conversion
(D) deposit the securities with a depositary or other regulated finan-
(8) with respect to an interest in real property, construct, or make
ordinary or extraordinary repairs to, alterations to, or improvements in,
buildings or other structures, demolish improvements, raze existing or
erect new party walls or buildings, subdivide or develop land, dedicate
land to public use or grant public or private easements and make or vacate
plats and adjust boundaries;
(9) enter into a lease for any purpose as lessor or lessee, including a
lease or other arrangement for exploration and removal of natural re-
sources, with or without the option to purchase or renew, for a period
within or extending beyond the duration of the trust;
(10) grant an option involving a sale, lease, or other disposition of
trust property or acquire an option for the acquisition of property, in-
cluding an option exercisable beyond the duration of the trust and exer-
cise an option so acquired;
(11) insure the property of the trust against damage or loss and insure
the trustee, the trustee's agents, and beneficiaries against liability arising
from the administration of the trust;
(12) abandon or decline to administer property of no value or of in-
sufficient value to justify its collection or continued administration;
(13) with respect to possible liability for violation of environmental
(A) Inspect or investigate property the trustee holds or has been
asked to hold, or property owned or operated by an organization in which
the trustee holds or has been asked to hold an interest, for the purpose
of determining the application of environmental law with respect to the
(B) take action to prevent, abate, or otherwise remedy any actual or
potential violation of any environmental law affecting property held di-
rectly or indirectly by the trustee, whether taken before or after the as-
sertion of a claim or the initiation of governmental enforcement;
(C) decline to accept property into trust or disclaim any power with
respect to property that is or may be burdened with liability for violation
of environmental law;
(D) compromise claims against the trust which may be asserted for
an alleged violation of environmental law; and
(E) pay the expense of any inspection, review, abatement, or remedial
action to comply with environmental law;
(14) pay or contest any claim, settle a claim by or against the trust,
and release, in whole or in part, a claim belonging to the trust;
(15) pay taxes, assessments, compensation of the trustee and of em-
ployees and agents of the trust and other expenses incurred in the ad-
(16) exercise elections with respect to federal, state, and local taxes;
(17) select a mode of payment under any employee benefit or retire-
ment plan, annuity, or life insurance payable to the trustee, exercise rights
thereunder, including exercise of the right to indemnification for ex-
penses and against liabilities, and take appropriate action to collect the
(18) make loans out of trust property, including loans to a beneficiary
on terms and conditions the trustee considers to be fair and reasonable
under the circumstances, and the trustee has a lien on future distributions
for repayment of those loans;
(19) pledge trust property to guarantee loans made by others to the
(20) appoint a trustee to act in another jurisdiction with respect to
trust property located in the other jurisdiction, confer upon the appointed
trustee all of the powers and duties of the appointing trustee, require that
the appointed trustee furnish security, and remove any trustee so ap-
(21) pay an amount distributable to a beneficiary who is under a legal
disability or who the trustee reasonably believes is incapacitated, by pay-
ing it directly to the beneficiary or applying it for the beneficiary's benefit,
(A) Paying it to the beneficiary's conservator or, if the beneficiary
does not have a conservator, the beneficiary's guardian;
(B) paying it to the beneficiary's custodian, attorney-in-fact, custodial
trustee or other person with legal authority to receive such funds for the
benefit of the beneficiary;
(C) if the trustee does not know of a conservator, guardian, custodian,
or custodial trustee, paying it to an adult relative or other person having
legal or physical care or custody of the beneficiary, to be expended on
the beneficiary's behalf; or
(D) managing it as a separate fund on the beneficiary's behalf, subject
to the beneficiary's continuing right to withdraw the distribution;
(22) on distribution of trust property or the division or termination
of a trust, make distributions in divided or undivided interests, allocate
particular assets in proportionate or disproportionate shares, value the
trust property for those purposes, and adjust for resulting differences in
(23) resolve a dispute concerning the interpretation of the trust or its
administration by mediation, arbitration, or other procedure for alterna-
tive dispute resolution;
(24) prosecute or defend an action, claim or judicial proceeding in
any jurisdiction to protect trust property and the trustee in the perform-
ance of the trustee's duties;
(25) sign and deliver contracts and other instruments that are useful
to achieve or facilitate the exercise of the trustee's powers; and
(26) on termination of the trust, exercise the powers appropriate to
wind up the administration of the trust and distribute the trust property
to the persons entitled to it.
Sec. 74. (UTC 817) DISTRIBUTION UPON TERMINATION.
(a) Upon termination or partial termination of a trust, the trustee may
send to the qualified beneficiaries a proposal for distribution. The right
of any qualified beneficiary to object to the proposed distribution ter-
minates if the qualified beneficiary does not notify the trustee of an ob-
jection within 30 days after the proposal was sent but only if the proposal
informed the qualified beneficiary of the right to object and of the time
allowed for objection.
(b) Upon the occurrence of an event terminating or partially termi-
nating a trust, the trustee shall proceed expeditiously to distribute the
trust property to the persons entitled to it, subject to the right of the
trustee to retain a reasonable reserve for the payment of debts, expenses,
(c) A release, upon termination or partial termination of a trust, by a
beneficiary of a trustee from liability for breach of trust is invalid to the
(1) It was induced by improper conduct of the trustee; or
(2) the beneficiary, at the time of the release, did not know of the
beneficiary's rights or of the material facts relating to the breach.
Sec. 75. (UTC 901) APPLICATION OF UNIFORM PRUDENT
INVESTOR ACT. Notwithstanding any provisions of the Kansas uniform
trust act to the contrary, K.S.A. 2000 Supp. 59-24a01 et seq., and amend-
ments thereto shall govern the investment and management of trust as-
Sec. 76. (UTC 1001) REMEDIES FOR BREACH OF TRUST.
(a) A violation by a trustee of a duty the trustee owes to a beneficiary is
a breach of trust.
(b) To remedy a breach of trust that has occurred or may occur, the
(1) Compel the trustee to perform the trustee's duties;
(2) enjoin the trustee from committing a breach of trust;
(3) compel the trustee to redress a breach of trust by paying money,
restoring property, or other means;
(4) order a trustee to account;
(5) appoint a special fiduciary to take possession of the trust property
and administer the trust;
(6) suspend the trustee;
(7) remove the trustee as provided in section 54, and amendments
(8) reduce or deny compensation to the trustee;
(9) subject to section 87, and amendments thereto, void an act of the
trustee, impose a lien or a constructive trust on trust property or trace
trust property wrongfully disposed of and recover the property or its pro-
(10) order any other appropriate relief.
Sec. 77. (UTC 1002) DAMAGES FOR BREACH OF TRUST. (a)
A trustee who commits a breach of trust is liable to the beneficiaries
affected for the greater of:
(1) The amount required to restore the value of the trust property
and trust distributions to what they would have been had the breach not
(2) the profit the trustee made by reason of the breach; or
(3) if the trustee embezzles or knowingly converts to the trustee's
own use any of the personal property of the trust, the trustee shall be
liable for double the value of the property so embezzled or converted.
(b) Except as otherwise provided in this subsection, if more than one
trustee is liable to the beneficiaries for a breach of trust, a trustee is
entitled to contribution from the other trustee or trustees. A trustee is
not entitled to contribution if the trustee was substantially more at fault
than another trustee or if the trustee committed the breach of trust in
bad faith or with reckless indifference to the purposes of the trust or the
interests of the beneficiaries. A trustee who received a benefit from the
breach of trust is not entitled to contribution from another trustee to the
extent of the benefit received.
(c) The provisions of this section shall not exclude an award of pu-
Sec. 78. (UTC 1003) DAMAGES IN ABSENCE OF BREACH.
(a) A trustee is accountable to an affected beneficiary for any profit made
by the trustee, other than compensation earned, arising from the admin-
istration of the trust, even absent a breach of trust.
(b) Absent a breach of trust, a trustee is not liable to a beneficiary
for a loss or depreciation in the value of trust property or for not having
made a profit.
Sec. 79. (UTC 1004) ATTORNEY FEES AND COSTS. In a ju-
dicial proceeding involving the administration of a trust, the court, as
justice and equity may require, may award costs and expenses, including
reasonable attorney fees, to any party, to be paid by another party or from
the trust that is the subject of the controversy.
Sec. 80. (UTC 1005) LIMITATION OF ACTION AGAINST
TRUSTEE. (a) A beneficiary may not commence a proceeding against a
trustee for breach of trust more than one year after the date the benefi-
ciary or a representative of the beneficiary was sent a report that ade-
quately disclosed the existence of a potential claim for breach of trust and
informed the beneficiary of the time allowed for commencing a proceed-
(b) A report adequately discloses the existence of a potential claim
for breach of trust if it provides sufficient information so that the bene-
ficiary or representative knows of the potential claim or should have in-
quired into its existence.
(c) If subsection (a) does not apply, a judicial proceeding by a ben-
eficiary against a trustee for breach of trust must be commenced within
two years after the first to occur of:
(1) The removal, resignation, or death of the trustee;
(2) the termination of the beneficiary's interest in the trust; or
(3) the termination of the trust.
Sec. 81. (UTC 1006) RELIANCE ON TRUST INSTRUMENT.
A trustee who acts in reasonable reliance on the terms of the trust as
expressed in the trust instrument is not liable to a beneficiary for a breach
of trust to the extent the breach resulted from the reliance.
Sec. 82. (UTC 1007) EVENT AFFECTING ADMINISTRA-
TION OR DISTRIBUTION. If the happening of an event, including
marriage, divorce, performance of educational requirements, or death,
affects the administration or distribution of a trust, a trustee who has
exercised reasonable care to ascertain the happening of the event is not
liable for a loss resulting from the trustee's lack of knowledge.
Sec. 83. (UTC 1008) EXCULPATION OF TRUSTEE. (a) A term
of a trust relieving a trustee of liability for breach of trust is unenforceable
to the extent that it:
(1) Relieves the trustee of liability for breach of trust committed in
interests of the beneficiaries; or
(2) was inserted as the result of an abuse by the trustee of a fiduciary
or confidential relationship to the settlor.
(b) An exculpatory term drafted or caused to be drafted by the trustee
is invalid as an abuse of a fiduciary or confidential relationship unless the
trustee proves that the exculpatory term is fair under the circumstances
and that its existence and contents were adequately communicated to the
Sec. 84. (UTC 1009) BENEFICIARY'S CONSENT, RELEASE,
OR RATIFICATION. A trustee is not liable to a beneficiary for breach
of trust if the beneficiary consented to the conduct constituting the
breach, released the trustee from liability for the breach, or ratified the
transaction constituting the breach, unless:
(1) The consent, release, or ratification of the beneficiary was induced
by improper conduct of the trustee; or
(2) at the time of the consent, release, or ratification, the beneficiary
did not know of the beneficiary's rights or of the material facts relating
to the breach.
Sec. 85. (UTC 1010) LIMITATION ON PERSONAL LIABIL-
ITY OF TRUSTEE. (a) Except as otherwise provided in the contract, a
trustee is not personally liable on a contract properly entered into in the
trustee's fiduciary capacity in the course of administering the trust if the
trustee in the contract disclosed the fiduciary capacity.
(b) A trustee is personally liable for torts committed in the course of
administering a trust, or for obligations arising from ownership or control
of trust property, including liability for violation of environmental law,
only if the trustee is personally at fault.
(c) A claim based on a contract entered into by a trustee in the trus-
tee's fiduciary capacity, on an obligation arising from ownership or control
of trust property or on a tort committed in the course of administering a
trust, may be asserted in a judicial proceeding against the trustee in the
trustee's fiduciary capacity, whether or not the trustee is personally liable
for the claim.
Sec. 86. (UTC 1011) INTEREST AS GENERAL PARTNER. (a)
Except as otherwise provided in subsection (c) or unless personal liability
is imposed in the contract, a trustee who holds an interest as a general
partner in a general or limited partnership is not personally liable on a
contract entered into by the partnership after the trust's acquisition of
the interest if the fiduciary capacity was disclosed in the contract or in a
statement previously filed pursuant to the Kansas uniform partnership
act, K.S.A. 2000 Supp. 56a-101 et seq., and amendments thereto, or the
revised uniform limited partnership act, K.S.A. 56-1a101 et seq., and
(b) Except as otherwise provided in subsection (c), a trustee who
holds an interest as a general partner is not personally liable for torts
committed by the partnership or for obligations arising from ownership
or control of the interest unless the trustee is personally at fault.
(c) The immunity provided by this section does not apply if an inter-
est in the partnership is held by the trustee in a capacity other than that
of trustee or is held by the trustee's spouse or one or more of the trustee's
descendants, siblings, or parents, or the spouse of any of them.
(d) If the trustee of a revocable trust holds an interest as a general
partner, the settlor is personally liable for contracts and other obligations
of the partnership as if the settlor were a general partner.
Sec. 87. (UTC 1012) PROTECTION OF PERSON DEALING
WITH TRUSTEE. (a) A person other than a beneficiary who in good
faith assists a trustee, or who in good faith and for value deals with a
trustee, without knowledge that the trustee is exceeding or improperly
exercising the trustee's powers is protected from liability as if the trustee
properly exercised the power.
(b) A person other than a beneficiary who in good faith deals with a
trustee is not required to inquire into the extent of the trustee's powers
or the propriety of their exercise.
(c) A person who in good faith delivers assets to a trustee need not
ensure their proper application.
(d) A person other than a beneficiary who in good faith assists a for-
mer trustee, or who in good faith and for value deals with a former trustee,
without knowledge that the trusteeship has terminated is protected from
liability as if the former trustee were still a trustee.
(e) Comparable protective provisions of other laws relating to com-
mercial transactions or transfer of securities by fiduciaries prevail over
the protection provided by this section.
Sec. 88. (UTC 1013) CERTIFICATION OF TRUST. (a) Instead
of furnishing a copy of the trust instrument to a person other than a
qualified beneficiary, the trustee may furnish to the person an acknowl-
edged certification of trust containing the following information:
(1) That the trust exists and the date the trust instrument was exe-
(2) the identity of the settlor;
(3) the identity and address of the currently acting trustee;
(4) the powers of the trustee;
(5) the revocability or irrevocability of the trust and the identity of
any person holding a power to revoke the trust;
(6) the authority of cotrustees to sign or otherwise authenticate and
whether all or less than all are required in order to exercise powers of
(7) the trust's taxpayer identification number; and
(8) the manner of taking title to trust property.
(b) A certification of trust may be signed or otherwise authenticated
by any trustee.
(c) A certification of trust must state that the trust has not been re-
voked, modified, or amended in any manner that would cause the rep-
resentations contained in the certification of trust to be incorrect.
(d) A certification of trust need not contain the dispositive terms of
(e) A recipient of a certification of trust may require the trustee to
furnish copies of those excerpts from the original trust instrument and
later amendments which designate the trustee and confer upon the trus-
tee the power to act in the pending transaction.
(f) A person who acts in reliance upon a certification of trust without
knowledge that the representations contained therein are incorrect is not
liable to any person for so acting and may assume without inquiry the
existence of the facts contained in the certification. Knowledge of the
terms of the trust may not be inferred solely from the fact that a copy of
all or part of the trust instrument is held by the person relying upon the
(g) A person who in good faith enters into a transaction in reliance
upon a certification of trust may enforce the transaction against the trust
property as if the representations contained in the certification were cor-
(h) A person making a demand for the trust instrument in addition
to a certification of trust or excerpts is liable for damages if the court
determines that the person did not act in good faith in demanding the
(i) This section does not limit the right of a person to obtain a copy
of the trust instrument in a judicial proceeding concerning the trust.
Sec. 89. (UTC 1101) UNIFORMITY OF APPLICATION AND
CONSTRUCTION. In applying and construing this uniform act, consid-
eration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
Sec. 90. (UTC 1102) ELECTRONIC RECORDS AND SIGNA-
TURES. The provisions of this code governing the legal effect, validity
or enforceability of electronic records or electronic signatures, and of
contracts formed or performed with the use of such records or signatures,
conform to the requirements of section 102 of the electronic signatures
in global and national commerce act (15 U.S.C. § 7002) and supersede,
modify, and limit the requirements of the electronic signatures in global
and national commerce act.
Sec. 91. (UTC 1103) SEVERABILITY CLAUSE. If any provision
of this code or its application to any person or circumstances is held
invalid, the invalidity does not affect other provisions or applications of
this code which can be given effect without the invalid provision or ap-
plication, and to this end the provisions of this code are severable.
Sec. 92. (UTC 1106) APPLICATION TO EXISTING RELA-
TIONSHIPS. (a) Except as otherwise provided in this act, on the effec-
tive date of this act:
(1) This act applies to all trusts created before, on, or after its effective
(2) this act applies to all judicial proceedings concerning trusts com-
menced on or after its effective date;
(3) this act applies to judicial proceedings concerning trusts com-
menced before its effective date unless the court finds that application of
a particular provision of this act would substantially interfere with the
effective conduct of the judicial proceedings or prejudice the rights of
the parties, in which case the particular provision of this act does not
apply and the superseded law applies;
(4) any rule of construction or presumption provided in this act ap-
plies to trust instruments executed before the effective date of the act
unless there is a clear indication of a contrary intent in the terms of the
(5) an act done before the effective date of the act is not affected by
(b) If a right is acquired, extinguished, or barred upon the expiration
of a prescribed period that has commenced to run under any other statute
before the effective date of the act, that statute continues to apply to the
right even if it has been repealed or superseded.
Sec. 93. K.S.A. 58-1201, 58-1202, 58-1203, 58-1205, 58-1206, 58-
1207, 58-1208, 58-1209, 58-1210, 58-1211, 58-2404, 58-2405, 58-2409,
58-2410, 58-2411, 58-2412, 58-2413, 58-2415, 58-2417, 58-2420, 59-2295
and 59-2296 and K.S.A. 2001 Supp. 58-1204, 58-12a01, 58-12a02, 58-
12a03, 58-12a04, 58-12a05 and 58-12a06 are hereby repealed.
Sec. 94. This act shall take effect and be in force from and after
January 1, 2003, and its publication in the statute book.
Approved May 17, 2002.
Date Composed: 10/10/2002 Date Modified: 10/10/2002