Question

The Uniform Principal and Income Act of 2000 (Uniform Act) allows the trustee to make adjustments between the principal and income accounts as necessary under certain requirements. Examine the major reasoning for allowing such transfers by the trustee and recommend alternatives to the allowance of the adjustments. Justify your response.

Answer 1

The most important change made by the new Act is the power granted to trustees to "... adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor..."5 The purpose of this provision is to allow trustees to invest for a total return, a portion of which may come from capital appreciation of trust assets rather than traditional income items such as interest and dividends. This provision is a significant departure from the 1962 version of the Uniform Act, since for the first time a fiduciary is allowed to allocate trust principal to the income beneficiary (or to reallocate a portion of the trust income to principal), even if no provision exists in the trust document allowing the fiduciary to do so. What this means in practice is that a trustee could allocate to the income of a net-income unitrust all or a portion of a realized capital gain, even though capital gains are allocated to principal under the normal rules, if the trustee determines that the allocation is necessary to balance the interests of the beneficiaries in the trust.

This provision of the Act grew out of the Uniform Management of Institutional Funds Act which in 1972 first introduced the concept of investing for total return, rather than simply to generate current income, in the case of institutional endowments, and the Uniform Prudent Investor Act in 1995 which applies modern portfolio theory to private trusts. Taken together, this progression of uniform legislation recognizes the importance to all beneficiaries -- income and remainder -- of the trustee investing for total return, and at the same time that the traditional concepts of "principal" and "income" may not accommodate total return investing in a way that will be fair to all beneficiaries.

However, the power to reallocate is not unlimited. The Act requires that three conditions must be met before the trustee can exercise the power to adjust. The first condition is that the trustee must invest and manage trust assets as a prudent investor. This requirement will be met if the trust is governed by the law of a state in which the Uniform Prudent Investor Act has been enacted, the prudent investor rule has been adopted by the courts or the terms of the trust require it.

The second condition is that the trust document by its terms bases distributions on "income". This requirement is met not only by trusts that require distribution of all income, but also by trusts which allow the trustee discretion to distribute part or all of the income while adding to principal any undistributed income. This condition is also met by a charitable remainder unitrust with a net-income limitation, since distributions are limited to the lesser of trust income or the unitrust amount.

The third condition which must be met for the trustee to be able to exercise the power to reallocate underscores the importance of balancing the interests of all trust beneficiaries. The trustee must first determine from the trust document whether the trustor intended to favor the income or remainder beneficiary in the investment and administration of trust assets. To the extent the document does not require or permit partiality in favor of either class of beneficiary, the trustee must administer the trust impartially, based on what is fair to all beneficiaries.6 In the case of a charitable remainder trust, which typically does not require or permit partiality by the trustee in favoring either the income or remainder beneficiaries of the trust, the trustee must determine that the necessary impartiality cannot be achieved by application of the "default" principal and income characterizations, without exercise of the power to reallocate receipts and disbursements between principal and income.

The Act lists situations in which the trustee is prohibited or restricted from exercising the power. A significant limitation, which in some situations can constitute a trap for the unwary, prohibits the trustee from exercising the reallocation power if the trustee is a beneficiary of the trust. This limitation will not only prevent reallocation where the trustee is the grantor and income beneficiary of the trust (and there are thousands of these trusts in existence), but also where the trustee is the charity which is the remainder beneficiary of the trust. In other words, unless a power to reallocate is specifically written into the trust -- uncommon in existing CRTs -- the Act empowers only independent trustees to exercise the power. To achieve the benefits and flexibility afforded by the reallocation power, it may be necessary to appoint a special trustee to exercise the power or to modify provisions of the trust document concerning the removal and replacement of trustees. Drafters of new net-income unitrusts can avoid this problem by writing the reallocation power into the accounting provisions of the trust instrument, and making it clear that the power may be exercised by a trustee even if the trustee is also a beneficiary of the trust.7

The Internal Revenue Service is not unaware of the power given by the Uniform Act and its predecessors to drafters to deviate from the default rules for determining trust income, and has put us on notice that not all such deviations will be respected. The Treasury Regulations provide: