C.S.H.B. 2241 78(R)    BILL ANALYSIS


C.S.H.B. 2241
By: Paxton
Financial Institutions
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

C.S.H.B. 2241, the Uniform Principal and Income Act, is based on model
language promulgated by the Uniform Law Commissioners in 1997 and amended
in 2000.  The Act provides more uniformity of law in an interstate
investment environment and needed clarity regarding the allocation of a
trust's assets into principal and income.  To date, at least 30 other
states have adopted Uniform Principal and Income Act legislation.   

The Act amends the Texas Property Code to provide procedures for trustees
to separate principal and income.  The Act distinguishes between property
that is principal to be distributed to remainder beneficiaries (when an
income interest ends) and property that is income distributed to income
beneficiaries.  It clarifies allocations of acquired assets and provides
trustees with the power to make adjustments between principal and income
to correct inequities.  The Act promotes greater protection for the
trust's assets along with providing a means for fairer treatment for all
beneficiaries. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

C.S.H.B. 2241 adds new Chapter 116 to the Property Code, to be cited as
the "Uniform Principal and Income Act."  The bill establishes a
fiduciary's duties in allocating receipts and disbursements to or between
principal and income.  It requires a fiduciary to administer a trust or
estate impartially, based on what is fair and reasonable to all
beneficiaries, unless the will or trust clearly intends another result.   

The bill permits a trustee to adjust between principal and income as the
trustee considers necessary, provides the circumstances under which
adjustment may be made, and establishes the considerations a trustee must
consider before making an adjustment.  The bill provides several
prohibitions to prevent a trustee from making an adjustment between
principal and income under certain circumstances.  The bill provides
procedures for adjustments when there is more than one trustee. The bill
does not permit a court to order a fiduciary to change a decision, or
exercise or not exercise a power conferred to the fiduciary, unless the
court determines the fiduciary has abused the discretion granted to the
fiduciary.  The bill requires a court to determine prospectively whether a
proposed action by a fiduciary would constitute abuse of discretion, upon
petition by the fiduciary.  

The bill defines a fiduciary's duties and establishes rules for
determination and distribution of net income following the death of the
decedent, in case of an estate, or after an income interest in a trust
ends.  The bill describes the net income entitlements of each beneficiary
when a fiduciary distributes assets and sets out the means of determining
a beneficiary's fractional interest.  The bill defines when the
beneficiaries' right to income begins and ends, and it describes the
trustee's duties to apportion receipts and disbursements at those times.
The bill establishes provisions for the distribution of income from a
noncharitable unitrust. 


Generally, C.S.H.B. 2241 requires a trustee to allocate money received
from any entity to income. Generally, a trustee shall allocate property
other than money, money received in exchange for a  trust's interest in an
entity, money received in liquidation of an entity, and capital gains
dividends from an entity to principal.  The bill provides several
exceptions to these general requirements.  The bill permits a trustee to
maintain separate accounting records from the rest of the trust for a
variety of activities if the trustee determines that doing so is in the
best interest of all beneficiaries.  The bill describes the allocation of
receipts, whether normally or not normally apportioned, between principal
and income and provides exceptions to these requirements.  The bill
permits a trustee to allocate an entire amount to principal if certain
allocations between principal and income would be insubstantial.  

The bill provides for the allocation of disbursements during the
administration of trust.  One half of regular compensation, expenses, and
recurring premiums should be disbursed from income, and the remaining
one-half from principal.  The bill provides that other types of
disbursements be made solely from principal.  The bill establishes the
means of transferring depreciation, reimbursements, and taxes between
principal and income.  The bill permits a fiduciary to make adjustments
between principal and income to offset the shifting of economic interests
or tax benefits between beneficiaries under certain conditions. 

C.S.H.B. 2241 amends sections of the Property Code and Texas Probate Code
to make conforming changes and repeals portions of those same codes that
are inconsistent with the bill's provisions. 

EFFECTIVE DATE

January 1, 2004

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute adds provisions requiring a court to determine that a
fiduciary has abused the discretion conferred upon the fiduciary before
reversing a decision or action made by the fiduciary. The substitute adds
the requirement that a court to determine prospectively whether a proposed
action by a fiduciary would constitute abuse of discretion, upon petition
by the fiduciary.  The substitute adds language clarifying the bill's
effect upon certain estates as of the effective date of the Act.