# Title 59 — Trusts, Uses, and Powers

## Chapter 59-04.2 — Uniform Principal and Income Act (1997)

### § 59-04.2-01. (102) Definitions.

In this chapter:
1. "Accounting period" means a calendar year unless another twelve-month period is
selected by a fiduciary. The term includes a portion of a calendar year or other
twelve-month period that begins when an income interest begins or ends when an
income interest ends.
2. "Beneficiary" includes, in the case of a decedent's estate, an heir, legatee, and devisee
and, in the case of a trust, an income beneficiary and a remainder beneficiary.
3. "Fiduciary" means a personal representative or a trustee. The term includes an
executor, administrator, successor personal representative, special administrator, and
a person performing substantially the same function.
4. "Income" means money or property that a fiduciary receives as current return from a
principal asset. The term includes a portion of receipts from a sale, exchange, or
liquidation of a principal asset, to the extent provided in sections 59-04.2-09 through
59-04.2-23.
5. "Income beneficiary" means a person to whom net income of a trust is or may be
payable.
6. "Income interest" means the right of an income beneficiary to receive all or part of net
income, whether the terms of the trust require it to be distributed or authorize it to be
distributed in the trustee's discretion.
7. "Mandatory income interest" means the right of an income beneficiary to receive net
income that the terms of the trust require the fiduciary to distribute.
8. "Net income" means the total receipts allocated to income during an accounting period
minus the disbursements made from income during the period, plus or minus transfers
under this chapter to or from income during the period.
9. "Principal" means property held in trust for distribution to a remainder beneficiary when
the trust terminates.
10. "Remainder beneficiary" means a person entitled to receive principal when an income
interest ends.
11. "Terms of a trust" means the manifestation of the intent of a settlor or decedent with
respect to the trust, expressed in a manner that admits of its proof in a judicial
proceeding, whether by written or spoken words or by conduct.
12. "Trustee" includes an original, additional, or successor trustee, whether or not
appointed or confirmed by a court.
### § 59-04.2-02. (103) Fiduciary duties - General principles.

1. In allocating receipts and disbursements to or between principal and income, and with
respect to any matter within the scope of sections 59-04.2-04 through 59-04.2-08, a
fiduciary:
a. Shall administer a trust or estate in accordance with the terms of the trust or the
will, even if there is a different provision in this chapter.
b. May administer a trust or estate by the exercise of a discretionary power of
administration given to the fiduciary by the terms of the trust or the will, even if the
exercise of the power produces a result different from a result required or
permitted by this chapter.
c. Shall administer a trust or estate in accordance with this chapter if the terms of
the trust or the will do not contain a different provision or do not give the fiduciary
a discretionary power of administration.
d. Shall add a receipt or charge a disbursement to principal to the extent that the
terms of the trust and this chapter do not provide a rule for allocating the receipt
or disbursement to or between principal and income.
2. In exercising a discretionary power of administration regarding a matter within the
scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a

fiduciary shall administer a trust or estate impartially, based on what is fair and
reasonable to all of the beneficiaries, except to the extent that the terms of the trust or
the will clearly manifest an intention that the fiduciary shall or may favor one or more of
the beneficiaries. A determination in accordance with this chapter is presumed to be
fair and reasonable to all of the beneficiaries.
### § 59-04.2-03. (104) Trustee's power to adjust.

1. A trustee may adjust between principal and income to the extent the trustee considers
necessary if the trustee invests and manages trust assets as a prudent investor, the
terms of the trust describe the amount that may or must be distributed to a beneficiary
by referring to the trust's income, and the trustee determines, after applying the rules
in subsection 1 of section 59-04.2-02 that the trustee is unable to comply with
subsection 1 of section 59-04.2-02.
a. The discretionary power of a trustee to adjust under this section may not be
interpreted to include an obligation to evaluate a trust for possible adjustment
between principal and income.
b. A trustee's inaction is presumed to be a good faith determination not to exercise
the power to adjust.
2. In deciding whether and to what extent to exercise the power conferred by
subsection 1, a trustee may consider all factors relevant to the trust and its
beneficiaries, including the following factors to the extent relevant:
a. The nature, purpose, size, and expected duration of the trust;
b. The intent of the settlor;
c. The identity and circumstances of the beneficiaries;
d. The needs for liquidity, regularity of income, and preservation and appreciation of
capital;
e. The assets held in the trust, the extent to which they consist of financial assets,
interests in closely held enterprises, tangible and intangible personal property, or
real property; the extent to which an asset is used by a beneficiary; and whether
an asset was purchased by the trustee or received from the settlor;
f. The net amount allocated to income under the other sections of this chapter and
the increase or decrease in the value of the principal assets, which the trustee
may estimate as to assets for which market values are not readily available;
g. Whether and to what extent the terms of the trust give the trustee the power to
invade principal or accumulate income or prohibit the trustee from invading
principal or accumulating income, and the extent to which the trustee has
exercised a power from time to time to invade principal or accumulate income;
h. The actual and anticipated effect of economic conditions on principal and income
and effects of inflation and deflation; and
i. The anticipated tax consequences of an adjustment.
3. A trustee may not make an adjustment:
a. That diminishes the income interest in a trust that requires all of the income to be
paid at least annually to a spouse and for which an estate tax or gift tax marital
deduction would be allowed, in whole or in part, if the trustee did not have the
power to make the adjustment;
b. That reduces the actuarial value of the income interest in a trust to which a
person transfers property with the intent to qualify for a gift tax exclusion;
c. That changes the amount payable to a beneficiary as a fixed annuity or a fixed
fraction of the value of the trust assets;
d. From an amount that is permanently set aside for charitable purposes under a will
or the terms of a trust unless both income and principal are so set aside;
e. If possessing or exercising the power to make an adjustment causes an individual
to be treated as the owner of all or part of the trust for income tax purposes, and
the individual would not be treated as the owner if the trustee did not possess the
power to make an adjustment;

f. If possessing or exercising the power to make an adjustment causes all or part of
the trust assets to be included for estate tax purposes in the estate of an
individual who has the power to remove a trustee or appoint a trustee, or both,
and the assets would not be included in the estate of the individual if the trustee
did not possess the power to make an adjustment;
g. If the trustee is a beneficiary of the trust; or
h. If the trustee is not a beneficiary, but the adjustment would benefit the trustee
directly or indirectly.
4. If subdivisions e, f, g, or h of subsection 3 apply to a trustee and there is more than
one trustee, a cotrustee to whom the provision does not apply may make the
adjustment unless the exercise of the power by the remaining trustee or trustees is not
permitted by the terms of the trust.
5. A trustee may release the entire power conferred by subsection 1 or may release only
the power to adjust from income to principal or the power to adjust from principal to
income if the trustee is uncertain about whether possessing or exercising the power
will cause a result described in subdivision a through f, or h of subsection 3 or if the
trustee determines that possessing or exercising the power will or may deprive the
trust of a tax benefit or impose a tax burden not described in subsection 3. The release
may be permanent or for a specified period, including a period measured by the life of
an individual.
6. Terms of a trust that limit the power of a trustee to make an adjustment between
principal and income do not affect the application of this section unless it is clear from
the terms of the trust that the terms are intended to deny the trustee the power of
adjustment conferred by subsection 1.
### § 59-04.2-03.1. Judicial control of discretionary power.

1. The court may not order a fiduciary to change a decision to exercise or not to exercise
a discretionary power conferred by this chapter unless the court determines that the
decision was not made in good faith or was an abuse of the fiduciary's discretion. A
fiduciary's decision is not an abuse of discretion merely because the court would have
exercised the power in a different manner or would not have exercised the power.
2. The decisions to which subsection 1 applies include:
a. A decision under subsection 1 of section 59-04.2-03 as to whether and to what
extent an amount should be transferred from principal to income or from income
to principal.
b. A decision regarding the factors that are relevant to the trust and its beneficiaries,
the extent to which the factors are relevant, and the weight, if any, to be given to
those factors, in deciding whether and to what extent to exercise the discretionary
power conferred by subsection 1 of section 59-04.2-03.
3. If the court determines a fiduciary has abused the fiduciary's discretion, the court may
place the income and remainder beneficiaries in the positions they would have
occupied if the discretion had not been abused, according to the following rules:
a. To the extent the abuse of discretion has resulted in no distribution to a
beneficiary or in a distribution that is too small, the court shall order the fiduciary
to distribute from the trust to the beneficiary an amount that the court determines
will restore the beneficiary, in whole or in part, to the beneficiary's appropriate
position.
b. To the extent the abuse of discretion has resulted in a distribution to a beneficiary
which is too large, the court shall place the beneficiaries, the trust, or both, in
whole or in part, in their appropriate positions by ordering the fiduciary to withhold
an amount from one or more future distributions to the beneficiary who received
the distribution that was too large or ordering that beneficiary to return some or all
of the distribution to the trust.
c. To the extent the court is unable, after applying subdivisions a and b to place the
beneficiaries, the trust, or both, in the positions they would have occupied if the
discretion had not been abused, the court may order the fiduciary to pay an

appropriate amount from its own funds to one or more of the beneficiaries or the
trust or both.
4. Upon petition by the fiduciary, the court having jurisdiction over a trust or estate shall
determine whether a proposed exercise or nonexercise by the fiduciary of a
discretionary power conferred by this chapter will result in an abuse of the fiduciary's
discretion. If the petition describes the proposed exercise or nonexercise of the power
and contains sufficient information to inform the beneficiaries of the reasons for the
proposal, the facts upon which the fiduciary relies, and an explanation of how the
income and remainder beneficiaries will be affected by the proposed exercise or
nonexercise of the power, then a beneficiary who challenges the proposed exercise or
nonexercise has the burden of establishing that it will result in an abuse of discretion.
### § 59-04.2-04. (201) Determination and distribution of net income.

After a decedent dies, in the case of an estate, or after an income interest in a trust ends,
the following rules apply:
1. A fiduciary of an estate or of a terminating income interest shall determine the amount
of net income and net principal receipts received from property specifically given to a
beneficiary under the rules in sections 59-04.2-06 through 59-04.2-29 which apply to
trustees and the rules in subsection 5. The fiduciary shall distribute the net income and
net principal receipts to the beneficiary who is to receive the specific property.
2. A fiduciary shall determine the remaining net income of a decedent's estate or a
terminating income interest under the rules in sections 59-04.2-06 through 59-04.2-29
which apply to trustees and by:
a. Including in net income all income from property used to discharge liabilities.
b. Paying from income or principal, in the fiduciary's discretion, fees of attorneys,
accountants, and fiduciaries; court costs and other expenses of administration;
and interest on death taxes, but the fiduciary may pay those expenses from
income of property passing to a trust for which the fiduciary claims an estate tax
marital or charitable deduction only to the extent that the payment of those
expenses from income will not cause the reduction or loss of the deduction.
c. Paying from principal all other disbursements made or incurred in connection with
the settlement of a decedent's estate or the winding up of a terminating income
interest, including debts, funeral expenses, disposition of remains, family
allowances, and death taxes and related penalties that are apportioned to the
estate or terminating income interest by the will, the terms of the trust, or
applicable law.
3. A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright
the interest or any other amount provided by the will, the terms of the trust, or
applicable law from net income determined under subsection 2 or from principal to the
extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount
outright from a trust after an income interest ends and no interest or other amount is
provided for by the terms of the trust or applicable law, the fiduciary shall distribute the
interest or other amount to which the beneficiary would be entitled under applicable
law if the pecuniary amount were required to be paid under a will.
4. A fiduciary shall distribute the net income remaining after distributions required by
subsection 3 in the manner described in section 59-04.2-05 to all other beneficiaries,
including a beneficiary who receives a pecuniary amount in trust, even if the
beneficiary holds an unqualified power to withdraw assets from the trust or other
presently exercisable general power of appointment over the trust.
5. A fiduciary may not reduce principal or income receipts from property described in
subsection 1 because of a payment described in section 59-04.2-24 or 59-04.2-25 to
the extent that the will, the terms of the trust, or applicable law requires the fiduciary to
make the payment from assets other than the property or to the extent that the
fiduciary recovers or expects to recover the payment from a third party. The net
income and principal receipts from the property are determined by including all of the
amounts the fiduciary receives or pays with respect to the property, whether those

amounts accrued or became due before, on, or after the date of a decedent's death or
an income interest's terminating event, and by making a reasonable provision for
amounts that the fiduciary believes the estate or terminating income interest may
become obligated to pay after the property is distributed.
### § 59-04.2-05. (202) Distribution to residuary and remainder beneficiaries.

1. Each beneficiary described in subsection 4 of section 59-04.2-04 is entitled to receive
a portion of the net income equal to the beneficiary's fractional interest in undistributed
principal assets, using values as of the distribution date. If a fiduciary makes more
than one distribution of assets to beneficiaries to whom this section applies, each
beneficiary, including one who does not receive part of the distribution, is entitled, as of
each distribution date, to the net income the fiduciary has received after the date of
death or terminating event or earlier distribution date but has not distributed as of the
current distribution date.
2. In determining a beneficiary's share of net income, the following rules apply:
a. The beneficiary is entitled to receive a portion of the net income equal to the
beneficiary's fractional interest in the undistributed principal assets immediately
before the distribution date, including assets that later may be sold to meet
principal obligations.
b. The beneficiary's fractional interest in the undistributed principal assets must be
calculated without regard to property specifically given to a beneficiary and
property required to pay pecuniary amounts not in trust.
c. The beneficiary's fractional interest in the undistributed principal assets must be
calculated on the basis of the aggregate value of those assets as of the
distribution date without reducing the value by any unpaid principal obligation.
d. The distribution date for purposes of this section may be the date as of which the
fiduciary calculates the value of the assets if that date is reasonably near the date
on which assets are actually distributed.
3. If a fiduciary does not distribute all of the collected but undistributed net income to
each person as of a distribution date, the fiduciary shall maintain appropriate records
showing the interest of each beneficiary in that net income.
4. A fiduciary may apply the rules in this section, to the extent that the fiduciary considers
it appropriate, to net gain or loss realized after the date of death or terminating event
or earlier distribution date from the disposition of a principal asset if this section applies
to the income from the asset.
### § 59-04.2-06. (301) When right to income begins and ends.

1. An income beneficiary is entitled to net income from the date on which the income
interest begins. An income interest begins on the date specified in the terms of the
trust or, if no date is specified, on the date an asset becomes subject to a trust or
successive income interest.
2. An asset becomes subject to a trust:
a. On the date it is transferred to the trust in the case of an asset that is transferred
to a trust during the transferor's life;
b. On the date of a testator's death in the case of an asset that becomes subject to
a trust by reason of a will, even if there is an intervening period of administration
of the testator's estate; or
c. On the date of an individual's death in the case of an asset that is transferred to a
fiduciary by a third party because of the individual's death.
3. An asset becomes subject to a successive income interest on the day after the
preceding income interest ends, as determined under subsection 4, even if there is an
intervening period of administration to wind up the preceding income interest.
4. An income interest ends on the day before an income beneficiary dies or another
terminating event occurs, or on the last day of a period during which there is no
beneficiary to whom a trustee may distribute income.

### § 59-04.2-07. (302) Apportionment of receipts and disbursements when decedent dies

or income interest begins.
1. A trustee shall allocate an income receipt or disbursement other than one to which
subsection 1 of section 59-04.2-04 applies to principal if its due date occurs before a
decedent dies in the case of an estate or before an income interest begins in the case
of a trust or successive income interest.
2. A trustee shall allocate an income receipt or disbursement to income if its due date
occurs on or after the date on which a decedent dies or an income interest begins and
it is a periodic due date. An income receipt or disbursement must be treated as
accruing from day to day if its due date is not periodic or it has no due date. The
portion of the receipt or disbursement accruing before the date on which a decedent
dies or an income interest begins must be allocated to principal and the balance must
be allocated to income.
3. An item of income or an obligation is due on the date the payer is required to make a
payment. If a payment date is not stated, there is no due date for the purposes of this
chapter. Distributions to shareholders or other owners from an entity to which section
determining who is entitled to receive the distribution or, if no date is fixed, on the
declaration date for the distribution. A due date is periodic for receipts or
disbursements that must be paid at regular intervals under a lease or an obligation to
pay interest or if an entity customarily makes distributions at regular intervals.
### § 59-04.2-08. (303) Apportionment when income interest ends.

1. In this section, "undistributed income" means net income received before the date on
which an income interest ends. The term does not include an item of income or
expense that is due or accrued or net income that has been added or is required to be
added to principal under the terms of the trust.
2. When a mandatory income interest ends, the trustee shall pay to a mandatory income
beneficiary who survives that date, or the estate of a deceased mandatory income
beneficiary whose death causes the interest to end, the beneficiary's share of the
undistributed income that is not disposed of under the terms of the trust unless the
beneficiary has an unqualified power to revoke more than five percent of the trust
immediately before the income interest ends. In the latter case, the undistributed
income from the portion of the trust that may be revoked must be added to principal.
3. When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the
trust's assets ends, the trustee shall prorate the final payment if and to the extent
required by applicable law to accomplish a purpose of the trust or its settlor relating to
income, gift, estate, or other tax requirements.
### § 59-04.2-09. (401) Character of receipts.

1. In this section, "entity" means a corporation, partnership, limited liability company,
regulated investment company, real estate investment trust, common trust fund, or any
other organization in which a trustee has an interest other than a trust or estate to
which section 59-04.2-10 applies, a business or activity to which section 59-04.2-11
applies, or an asset-backed security to which section 59-04.2-23 applies.
2. Except as otherwise provided in this section, a trustee shall allocate to income money
received from an entity.
3. A trustee shall allocate the following receipts from an entity to principal:
a. Property other than money.
b. Money received in one distribution or a series of related distributions in exchange
for part or all of a trust's interest in the entity.
c. Money received in total or partial liquidation of the entity.
d. Money received from an entity that is a regulated investment company or a real
estate investment trust if the money distributed is a capital gain dividend for
federal income tax purposes.
4. Money is received in partial liquidation:

a. To the extent that the entity, at or near the time of a distribution, indicates that it is
a distribution in partial liquidation; or
b. If the total amount of money and property received in a distribution or series of
related distributions is greater than twenty percent of the entity's gross assets, as
shown by the entity's year-end financial statements immediately preceding the
initial receipt.
5. Money is not received in partial liquidation, nor may it be taken into account under
subdivision b of subsection 4, to the extent that it does not exceed the amount of
income tax that a trustee or beneficiary must pay on taxable income of the entity that
distributes the money.
6. A trustee may rely upon a statement made by an entity about the source or character
of a distribution if the statement is made at or near the time of distribution by the
entity's board of directors or other person or group of persons authorized to exercise
powers to pay money or transfer property comparable to those of a corporation's board
of directors.
### § 59-04.2-10. (402) Distribution from trust or estate.

A trustee shall allocate to income an amount received as a distribution of income from a
trust or an estate in which the trust has an interest other than a purchased interest and shall
allocate to principal an amount received as a distribution of principal from such a trust or estate.
If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor
transfers an interest in such a trust to a trustee, section 59-04.2-09 or 59-04.2-23 applies to a
receipt from the trust.
### § 59-04.2-11. (403) Business and other activities conducted by trustee.

1. If a trustee who conducts a business or other activity determines that it is in the best
interest of all the beneficiaries to account separately for the business or activity instead
of accounting for it as part of the trust's general accounting records, the trustee may
maintain separate accounting records for its transactions, whether or not its assets are
segregated from other trust assets.
2. A trustee who accounts separately for a business or other activity may determine the
extent to which its net cash receipts must be retained for working capital, the
acquisition or replacement of fixed assets, and other reasonably foreseeable needs of
the business or activity, and the extent to which the remaining net cash receipts are
accounted for as principal or income in the trust's general accounting records. If a
trustee sells assets of the business or other activity, other than in the ordinary course
of the business or activity, the trustee shall account for the net amount received as
principal in the trust's general accounting records to the extent the trustee determines
that the amount received is no longer required in the conduct of the business.
3. Activities for which a trustee may maintain separate accounting records include retail,
manufacturing, service, and other traditional business activities; farming; raising and
selling livestock and other animals; management of rental properties; extraction of
minerals and other natural resources; timber operations; and activities to which section
### § 59-04.2-12. (404) Principal receipts.

A trustee shall allocate to principal:
1. To the extent not allocated to income under this chapter, assets received from a
transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating
income interest, or a payer under a contract naming the trust or its trustee as
beneficiary.
2. Money or other property received from the sale, exchange, liquidation, or change in
form of a principal asset, including realized profit, subject to sections 59-04.2-09
through 59-04.2-23.

3. Amounts recovered from third parties to reimburse the trust because of disbursements
described in subdivision g of subsection 1 of section 59-04.2-25 or for other reasons to
the extent not based on the loss of income.
4. Proceeds of property taken by eminent domain, but a separate award made for the
loss of income with respect to an accounting period during which a current income
beneficiary had a mandatory income interest is income.
5. Net income received in an accounting period during which there is no beneficiary to
whom a trustee may or must distribute income.
6. Other receipts as provided in sections 59-04.2-16 through 59-04.2-23.
### § 59-04.2-13. (405) Rental property.

To the extent that a trustee accounts for receipts from rental property pursuant to this
section, the trustee shall allocate to income an amount received as rent of real or personal
property, including an amount received for cancellation or renewal of a lease. An amount
received as a refundable deposit, including a security deposit or a deposit that is to be applied
as rent for future periods, must be added to principal and held subject to the terms of the lease
and is not available for distribution to a beneficiary until the trustee's contractual obligations
have been satisfied with respect to that amount.
### § 59-04.2-14. (406) Obligation to pay money.

1. An amount received as interest, whether determined at a fixed, variable, or floating
rate, on an obligation to pay money to the trustee, including an amount received as
consideration for prepaying principal, must be allocated to income without any
provision for amortization of premium.
2. A trustee shall allocate to principal an amount received from the sale, redemption, or
other disposition of an obligation to pay money to the trustee more than one year after
it is purchased or acquired by the trustee, including an obligation whose purchase
price or value when it is acquired is less than its value at maturity. If the obligation
matures within one year after it is purchased or acquired by the trustee, an amount
received in excess of its purchase price or its value when acquired by the trust must
be allocated to income.
3. This section does not apply to an obligation to which section 59-04.2-17, 59-04.2-18,
59-04.2-19, 59-04.2-20, 59-04.2-22, or 59-04.2-23 applies.
### § 59-04.2-15. (407) Insurance policies and similar contracts.

1. Except as otherwise provided in subsection 2, a trustee shall allocate to principal the
proceeds of a life insurance policy or other contract in which the trust or its trustee is
named as beneficiary, including a contract that insures the trust or its trustee against
loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall
allocate dividends on an insurance policy to income if the premiums on the policy are
paid from income, and to principal if the premiums are paid from principal.
2. A trustee shall allocate to income proceeds of a contract that insures the trustee
against loss of occupancy or other use by an income beneficiary, loss of income, or,
subject to section 59-04.2-11, loss of profits from a business.
3. This section does not apply to a contract to which section 59-04.2-17 applies.
### § 59-04.2-16. (408) Insubstantial allocations not required.

Reserved.
### § 59-04.2-17. (409) Deferred compensation, annuities, and similar payments.

1. In this section, "payment" means a payment that a trustee may receive over a fixed
number of years or during the life of one or more individuals because of services
rendered or property transferred to the payer in exchange for future payments. The
term includes a payment made in money or property from the payer's general assets
or from a separate fund created by the payer. For purposes of subsections 4, 5, 6, and

7, the term includes any payment from a separate fund, regardless of the reason for
the payment. In this section, "separate fund" includes a private or commercial annuity,
an individual retirement account, and a pension, profit-sharing, stock-bonus, or
stock-ownership plan.
2. To the extent that a payment is characterized as interest, a dividend, or a payment
made in lieu of interest or a dividend, a trustee shall allocate the payment to income.
The trustee shall allocate to principal the balance of the payment and any other
payment received in the same accounting period that is not characterized as interest,
a dividend, or an equivalent payment.
3. If no part of a payment is characterized as interest, a dividend, or an equivalent
payment, and all or part of the payment is required to be made, a trustee shall allocate
to income ten percent of the part that is required to be made during the accounting
period and the balance to principal. If no part of a payment is required to be made or
the payment received is the entire amount to which the trustee is entitled, the trustee
shall allocate the entire payment to principal. For purposes of this subsection, a
payment is not required to be made to the extent that it is made because the trustee
exercises a right of withdrawal.
4. Except as otherwise provided in subsection 5, subsections 6 and 7 apply, and
subsections 2 and 3 do not apply, in determining the allocation of a payment made
from a separate fund to a trust to which an election to qualify for marital deduction
under section 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has
been made or to a trust that qualified for the marital deduction under section 2056(b)
(5) of the Internal Revenue Code of 1986, as amended.
5. Subsections 4, 6, and 7 do not apply if and to the extent that the series of payments
would, without application of subsection 4, qualify for the marital deduction under
section 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.
6. A trustee shall determine the internal income of each separate fund for the accounting
period as if the separate fund were a trust subject to this chapter. Upon request of the
surviving spouse, the trustee shall demand of the persons administering the separate
fund that this internal income be distributed to the trust. The trustee shall allocate a
payment from the separate fund to income to the extent of the internal income of the
separate fund and distribute that amount to the surviving spouse. The trustee shall
allocate the balance to principal. Upon request of the surviving spouse, the trustee
shall allocate principal to income to the extent the internal income of the separate fund
exceeds payments made from the separate fund to the trust during the accounting
period.
7. If a trustee cannot determine the internal income of a separate fund but can determine
the value of a separate fund, the internal income of the separate fund is deemed to
equal four percent of the fund's value, according to the most recent statement of value
preceding the beginning of the accounting period. If the trustee can determine neither
the internal income of the separate fund nor the fund's value, the internal income of the
fund is deemed to equal the product of the interest rate and the present value of the
expected future payments, as determined under section 7520 of the Internal Revenue
Code of 1986, as amended, for the month preceding the accounting period for which
the computation is made.
8. This section does not apply to a payment to which section 59-04.2-18 applies.
### § 59-04.2-18. (410) Liquidating asset.

1. In this section, "liquidating asset" means an asset whose value will diminish or
terminate because the asset is expected to produce receipts for a period of limited
duration. The term includes a leasehold, patent, copyright, royalty right, and right to
receive payments during a period of more than one year under an arrangement that
does not provide for the payment of interest on the unpaid balance. The term does not
include a payment subject to section 59-04.2-17, resources subject to section
59-04.2-19, timber subject to section 59-04.2-20, an activity subject to section

59-04.2-22, an asset subject to section 59-04.2-23, or any asset for which the trustee
establishes a reserve for depreciation under section 59-04.2-26.
2. A trustee shall allocate to income ten percent of the receipts from a liquidating asset
and the balance to principal.
### § 59-04.2-19. (411) Minerals, water, and other natural resources.

1. To the extent that a trustee accounts for receipts from an interest in minerals or other
natural resources pursuant to this section, the trustee shall allocate them as follows:
a. If received as nominal delay rental or nominal annual rent on a lease, a receipt
must be allocated to income.
b. If received from a production payment, a receipt must be allocated to income if
and to the extent that the agreement creating the production payment provides a
factor for interest or its equivalent. The balance must be allocated to principal.
c. If an amount received as a royalty, shut-in-well payment, take-or-pay payment,
bonus, or delay rental is more than nominal, fifteen percent must be allocated to
principal and the balance to income.
d. If an amount is received from a working interest or any other interest not provided
for in subdivision a, b, or c, fifteen percent of the net amount received must be
allocated to principal and the balance to income.
2. An amount received on account of an interest in water that is renewable must be
allocated to income. If the water is not renewable, ninety percent of the amount must
be allocated to principal and the balance to income.
3. This chapter applies whether or not a decedent or donor was extracting minerals,
water, or other natural resources before the interest became subject to the trust.
4. If a trust has not received receipts from an interest in minerals, water, or other natural
resources before August 1, 2015, the trustee shall allocate receipts from interests in
minerals, water, or other natural resources as provided in this section.
5. If a trust has received receipts from an interest in minerals, water, or other natural
resources before August 1, 2015, the trustee shall allocate receipts from interests in
minerals, water, or other natural resources as follows:
a. If the trust acquired an interest in minerals, water, or other natural resources
before August 1, 1999, the trustee may allocate receipts in the manner used by
the trustee before August 1, 1999, or as required by law in effect on August 1,
1999.
b. If the trust acquired an interest in minerals, water, or other natural resources after
August 1, 1999, and before August 1, 2015, the trustee shall allocate receipts in
the manner required by law in effect on August 1, 1999.
6. The trustee may petition the court to permanently modify the manner used to allocate
receipts under this section. In deciding whether and to what extent to modify the
manner used to allocate receipts, the court may consider any factors relevant to the
trust and its beneficiaries; including the following factors to the extent they are
relevant:
a. The nature, purpose, and expected duration of the trust;
b. The intent of the settlor;
c. The identity and circumstances of the beneficiaries;
d. The need for liquidity, regularity of income, and preservation and appreciation of
capital;
e. The assets held in the trust; the extent to which they consist of financial assets,
interests in closely held enterprises, tangible and intangible personal property, or
real property; the extent to which an asset is used by a beneficiary; and whether
an asset was purchased by the trustee or received from the settlor;
f. The net amount allocated to income under the other sections of this chapter and
the increase or decrease in the value of the principal assets;
g. Whether and to what extent the terms of the trust give the trustee the power to
invade principal or accumulate income or prohibit the trustee from invading

principal or accumulating income, and the extent to which the trustee has
exercised a power from time to time to invade principal or accumulate income;
h. The actual and anticipated effect of economic conditions on principal and income
and effects of inflation and deflation; and
i. The anticipated tax consequences of a modification.
### § 59-04.2-20. (412) Timber.

1. To the extent that a trustee accounts for receipts from the sale of timber and related
products pursuant to this section, the trustee shall allocate the net receipts:
a. To income to the extent that the amount of timber removed from the land does not
exceed the rate of growth of the timber during the accounting periods in which a
beneficiary has a mandatory income interest;
b. To principal to the extent that the amount of timber removed from the land
exceeds the rate of growth of the timber or the net receipts are from the sale of
standing timber;
c. To or between income and principal if the net receipts are from the lease of
timberland or from a contract to cut timber from land owned by a trust, by
determining the amount of timber removed from the land under the lease or
contract and applying the rules in subdivisions a and b; or
d. To principal to the extent that advance payments, bonuses, and other payments
are not allocated pursuant to subdivision a, b, or c.
2. In determining net receipts to be allocated pursuant to subsection 1, a trustee shall
deduct and transfer to principal a reasonable amount for depletion.
3. This chapter applies whether or not a decedent or transferor was harvesting timber
from the property before it became subject to the trust.
4. If a trust owns an interest in timberland on August 1, 1999, the trustee may allocate net
receipts from the sale of timber and related products as provided in this chapter or in
the manner used by the trustee before August 1, 1999. If the trust acquires an interest
in timberland after August 1, 1999, the trustee shall allocate net receipts from the sale
of timber and related products as provided in this chapter.
### § 59-04.2-21. (413) Property not productive of income.

Reserved.
### § 59-04.2-22. (414) Derivatives and options.

1. In this section, "derivative" means a contract or financial instrument or a combination
of contracts and financial instruments which gives a trust the right or obligation to
participate in some or all changes in the price of a tangible or intangible asset or group
of assets, or changes in a rate, an index of prices or rates, or other market indicator for
an asset or a group of assets.
2. To the extent that a trustee does not account under section 59-04.2-11 for transactions
in derivatives, the trustee shall allocate to principal receipts from and disbursements
made in connection with those transactions.
3. If a trustee grants an option to buy property from the trust, whether or not the trust
owns the property when the option is granted, grants an option that permits another
person to sell property to the trust, or acquires an option to buy property for the trust or
an option to sell an asset owned by the trust, and the trustee or other owner of the
asset is required to deliver the asset if the option is exercised, an amount received for
granting the option must be allocated to principal. An amount paid to acquire the option
must be paid from principal. A gain or loss realized upon the exercise of an option,
including an option granted to a settlor of the trust for services rendered, must be
allocated to principal.

### § 59-04.2-23. (415) Asset-backed securities.

1. In this section, "asset-backed security" means an asset whose value is based upon
the right it gives the owner to receive distributions from the proceeds of financial
assets that provide collateral for the security. The term includes an asset that gives the
owner the right to receive from the collateral financial assets only the interest or other
current return or only the proceeds other than interest or current return. The term does
not include an asset to which section 59-04.2-09 or 59-04.2-17 applies.
2. If a trust receives a payment from interest or other current return and from other
proceeds of the collateral financial assets, the trustee shall allocate to income the
portion of the payment which the payer identifies as being from interest or other
current return and shall allocate the balance of the payment to principal.
3. If a trust receives one or more payments in exchange for the trust's entire interest in an
asset-backed security in one accounting period, the trustee shall allocate the
payments to principal. If a payment is one of a series of payments that will result in the
liquidation of the trust's interest in the security over more than one accounting period,
the trustee shall allocate ten percent of the payment to income and the balance to
principal.
### § 59-04.2-24. (501) Disbursements from income.

A trustee shall make the following disbursements from income to the extent that they are not
disbursements to which subdivision b or c of subsection 2 of section 59-04.2-04 applies:
1. One-half of the regular compensation of the trustee and of any person providing
investment advisory or custodial services to the trustee.
2. One-half of all expenses for accountings, judicial proceedings, or other matters that
involve both the income and remainder interests.
3. All of the other ordinary expenses incurred in connection with the administration,
management, or preservation of trust property and the distribution of income, including
interest, ordinary repairs, regularly recurring taxes assessed against principal, and
expenses of a proceeding or other matter that concerns primarily the income interest.
4. Recurring premiums on insurance covering the loss of a principal asset or the loss of
income from or use of the asset.
### § 59-04.2-25. (502) Disbursements from principal.

1. A trustee shall make the following disbursements from principal:
a. The remaining one-half of the disbursements described in subsections 1 and 2 of
section 59-04.2-24;
b. All of the trustee's compensation calculated on principal as a fee for acceptance,
distribution, or termination, and disbursements made to prepare property for sale;
c. Payments on the principal of a trust debt;
d. Expenses of a proceeding that concerns primarily principal, including a
proceeding to construe the trust or to protect the trust or its property;
e. Premiums paid on a policy of insurance not described in subsection 4 of section
f. Estate, inheritance, and other transfer taxes, including penalties, apportioned to
the trust; and
g. Disbursements related to environmental matters, including reclamation,
assessing environmental conditions, remedying and removing environmental
contamination, monitoring remedial activities and the release of substances,
preventing future releases of substances, collecting amounts from persons liable
or potentially liable for the costs of those activities, penalties imposed under
environmental laws or regulations and other payments made to comply with those
laws or regulations, statutory or common-law claims by third parties, and
defending claims based on environmental matters.
2. If a principal asset is encumbered with an obligation that requires income from that
asset to be paid directly to the creditor, the trustee shall transfer from principal to

income an amount equal to the income paid to the creditor in reduction of the principal
balance of the obligation.
### § 59-04.2-26. (503) Transfers from income to principal for depreciation.

1. In this section, "depreciation" means a reduction in value due to wear, tear, decay,
corrosion, or gradual obsolescence of a fixed asset having a useful life of more than
one year.
2. A trustee may transfer to principal a reasonable amount of the net cash receipts from a
principal asset that is subject to depreciation, but may not transfer any amount for
depreciation:
a. Of that portion of real property used or available for use by a beneficiary as a
residence or of tangible personal property held or made available for the personal
use or enjoyment of a beneficiary;
b. During the administration of a decedent's estate; or
c. Under this section if the trustee is accounting under section 59-04.2-11 for the
business or activity in which the asset is used.
3. An amount transferred to principal need not be held as a separate fund.
### § 59-04.2-27. (504) Transfers from income to reimburse principal.

1. If a trustee makes or expects to make a principal disbursement described in this
section, the trustee may transfer an appropriate amount from income to principal in
one or more accounting periods to reimburse principal or to provide a reserve for
future principal disbursements.
2. Principal disbursements to which subsection 1 applies include the following, but only to
the extent that the trustee has not been and does not expect to be reimbursed by a
third party:
a. An amount chargeable to income but paid from principal because it is unusually
large, including extraordinary repairs;
b. A capital improvement to a principal asset, whether in the form of changes to an
existing asset or the construction of a new asset, including special assessments;
c. Disbursements made to prepare property for rental, including tenant allowances,
leasehold improvements, and broker's commissions;
d. Periodic payments on an obligation secured by a principal asset to the extent that
the amount transferred from income to principal for depreciation is less than the
periodic payments; and
e. Disbursements described in subdivision g of subsection 1 of section 59-04.2-25.
3. If the asset whose ownership gives rise to the disbursements becomes subject to a
successive income interest after an income interest ends, a trustee may continue to
transfer amounts from income to principal as provided in subsection 1.
### § 59-04.2-28. (505) Income taxes.

1. A tax required to be paid by a trustee based on receipts allocated to income must be
paid from income.
2. A tax required to be paid by a trustee based on receipts allocated to principal must be
paid from principal, even if the tax is called an income tax by the taxing authority.
3. A tax required to be paid by a trustee on the trust's share of an entity's taxable income
must be paid:
a. From income to the extent that receipts from the entity are allocated to income;
b. From principal to the extent that receipts from the entity are allocated only to
principal;
c. Proportionately from principal and income to the extent that receipts from the
entity are allocated to both income and principal; and
d. From principal to the extent that the tax exceeds the total receipts from the entity.

4. After applying subsections 1 through 3, the trustee shall adjust income or principal
receipts to the extent that the trust's taxes are reduced because the trust receives a
deduction for payments made to a beneficiary.
### § 59-04.2-29. (506) Adjustments between principal and income because of taxes.

1. A fiduciary may make adjustments between principal and income to offset the shifting
of economic interests or tax benefits between income beneficiaries and remainder
beneficiaries which arise from:
a. Elections and decisions, other than those described in subsection 2, that the
fiduciary makes from time to time regarding tax matters;
b. An income tax or any other tax that is imposed upon the fiduciary or a beneficiary
as a result of a transaction involving or a distribution from the estate or trust; or
c. The ownership by an estate or trust of an interest in an entity whose taxable
income, whether or not distributed, is includable in the taxable income of the
estate, trust, or a beneficiary.
2. If the amount of an estate tax marital deduction or charitable contribution deduction is
reduced because a fiduciary deducts an amount paid from principal for income tax
purposes instead of deducting it for estate tax purposes, and as a result estate taxes
paid from principal are increased and income taxes paid by an estate, trust, or
beneficiary are decreased, each estate, trust, or beneficiary that benefits from the
decrease in income tax shall reimburse the principal from which the increase in estate
tax is paid. The total reimbursement must equal the increase in the estate tax to the
extent that the principal used to pay the increase would have qualified for a marital
deduction or charitable contribution deduction but for the payment. The proportionate
share of the reimbursement for each estate, trust, or beneficiary whose income taxes
are reduced must be the same as its proportionate share of the total decrease in
income tax. An estate or trust shall reimburse principal from income.
### § 59-04.2-30. Certain charitable remainder unitrusts.

1. Notwithstanding any other provision of this chapter, unless the trust instrument directs
otherwise, an increase in the value of the obligations described in this subsection
owned by a charitable remainder unitrust of the type authorized in section 664(d)(3) of
the Internal Revenue Code [26 U.S.C. 664(d)(3)] or its successor provisions is
distributable as income when it becomes available for distribution:
a. A zero coupon bond;
b. An annuity contract before annuitization;
c. A life insurance contract before the death of the insured;
d. An interest in a common trust fund as defined in section 584 of the Internal
Revenue Code [26 U.S.C. 584] or its successor provisions;
e. An interest in a partnership as defined in section 7701 of the Internal Revenue
Code [26 U.S.C. 7701] or its successor provisions; and
f. Any other obligation for the payment of money that is payable at a future time in
accordance with a fixed, variable, or discretionary schedule of appreciation in
excess of the price at which it was issued.
2. The increase in value of the obligations described in subsection 1 is distributable to the
beneficiary who was the income beneficiary at the time of the increase.
3. For purposes of this section, the increase in value of an obligation described in
subsection 1 is available for distribution only when the trustee receives cash on
account of the obligation. If the obligation is surrendered or liquidated partially, the
cash available must be attributed first to the increase.
