(a) It is lawful for any person or owner of property to convey or devise any of his real estate or personal property to another in trust to receive and pay the profits or income, and, at the grantor's or devisor's election, so much of the principal as may be required, in the trustee's opinion, for the support, maintenance and education of any child, grandchild or other relation by blood or marriage, with remainder as the grantor or devisor shall provide, during a period of time not exceeding the limit fixed by law as to perpetuities; and the property so conveyed and the income or profits therefrom shall not be liable for or subject to be seized or taken in any manner for the debt of such child, grandchild or other relation, whether the same is contracted or incurred before or after the creation of such trust.

(b) Qualified trust under the Internal Revenue Code.

(1) PROHIBITION ON ASSIGNMENT. - Any benefits provided under a plan which includes a trust that constitutes a "qualified trust" may not be assigned or alienated, voluntarily or involuntarily, and shall be exempt from the operation of any bankruptcy or insolvency laws under 11 U.S.C. § 522(b), as from time to time amended. This subdivision may not be waived by a participant or beneficiary of any qualified plan.

(2) EXCEPTION FOR PLAN LOANS. - The securing of a loan made to a participant or beneficiary of such a plan shall not be treated as an assignment or alienation under the preceding subdivision (1) if such loan is secured by the participant's accrued nonforfeitable benefit under the plan and is exempt from the tax imposed by Section 4975 of the Code by reason of Section 4975(d)(1) of the Code.

(3) EXCEPTION FOR QUALIFIED DOMESTIC RELATIONS ORDERS. - Subdivision (1) above shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, as such term is defined in Section 414(p) of the Code, except that subdivision (1) above shall not apply if the order is determined to be a "qualified domestic relations order" in accordance with Section 414(p) of the Code. However, no domestic relations order shall be deemed a qualified domestic relations order except in accordance with the procedures for such determination set forth in such Section 414(p) and the related provisions of the Employee Retirement Income Security Act of 1974, as from time to time amended.

(4) INTERPRETATION. - The provisions of this section shall be interpreted so as to provide restrictions on alienation and assignment to the extent, and only to the extent, the same are required for a trust within the definition of "qualified trust" herein to be a "qualified trust" under the applicable provisions of the Code, notwithstanding any attempted assignment or alienation in violation of Section 401(a) or other applicable provisions of the Code. It is intended that this section will constitute "a restriction of the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law" for purposes of Section 541(c)(2) of the Federal Bankruptcy Code, 11 U.S.C. § 541(c)(2), as from time to time amended. This section shall further be construed as a "state spendthrift trust law." It is further intended for this section to provide an exemption from creditors' claims within 11 U.S.C. § 522.

(5) DEFINITIONS.

a. The term "assignment or alienation," and any conjugation thereof, includes any anticipation, assignment (either at law or in equity), alienation, attachment, garnishment, levy, execution, or other legal or equitable process. Moreover, such term includes:

1. Any arrangement providing for the payment to the employer or other sponsor of such plan of benefits that otherwise would be due the participant under the plan;

2. Any direct or indirect arrangement (whether revocable or irrevocable) whereby any person acquires from a participant or beneficiary of such plan a right or interest enforceable against the plan in, or to, all or any part of a plan benefit which is, or may become, payable to the participant or beneficiary;

3. Any attachment, execution, seizure, or the like, or under any form of legal process whatsoever; and

4. The operation of any bankruptcy or insolvency laws under 11 U.S.C. § 522(b) as from time to time amended.

Notwithstanding the foregoing, "assignment and alienation" does not include those items excluded from such definition by Treasury Regulations § 1.401(a)-13(c)(2).

b. "Code" means the Internal Revenue Code of 1986, as from time to time amended, or as at any time superseded by reenactment, recodification, or adoption of any other similar revenue law. Reference to specific sections of the Code shall include references to their successor sections as a result of renumbering or recodification at any future date.

c. "Treasury Regulation" means a valid regulation of the United States Department of Treasury codified at Title 26 of the Code of Federal Regulations. References to specific Treasury Regulations include references to amendments and future reenactments or recodifications of such regulations, regardless of how designated.

d. "Qualified trust" means a "qualified trust" as such term is used in Section 401(a) of the Code, and includes any trust that would not be qualified but for this section. A "qualified trust" includes, without limitations, any trust that has received a favorable determination letter from the Internal Revenue Service of the United States Department of Treasury to the effect that such trust is, or will be upon the satisfaction of certain administrative conditions, a "qualified trust" under Section 401(a) of the Code. "Qualified trust" also includes:

1. A "retirement annuity" described in Section 404(a)(2) of the Code, including a retirement annuity that would not satisfy the requirements of Section 404(a)(2) of the Code but for this section;

2. An annuity described in Section 403(b) of the Code, including an annuity that would not satisfy the requirements of Section 403(b) of the Code but for this section;

3. An individual retirement plan described in Section 7701(a)(37) of the Code, including an individual retirement plan that would not satisfy the requirements of Section 7701(a)(37) of the Code but for this section;

4. A retirement bond described in Section 409 of the Code, as in effect prior to January 1, 1984, including a retirement bond that would not satisfy the requirements of Section 409 of the Code but for this section;

5. A governmental plan described in Section 414(d) of the Code;

6. A church plan described in Section 414(e) of the Code; and

7. A tax credit employee stock ownership plan described in Section 409 of the Code, including a tax credit employee stock ownership plan that would not satisfy the requirements of Section 409 of the Code but for this section.

(c) The provisions of subsection (b) of this section shall not apply to the Employees Retirement System of Alabama, Teacher's Retirement System of Alabama, and the Judicial Retirement Fund of Alabama.

(a) Definitions. - As used in this section, unless the context or subject matter otherwise requires, the following terms shall have the meanings respectively ascribed to them by this subsection:

(1) TRUST. An express trust created by a written instrument, including a will, whereby a trustee has the duty to administer a trust asset for the benefit of a named or otherwise described income or principal beneficiary or beneficiaries, or both.

(2) TRUST INSTITUTION. Any state bank, any national bank or corporation, including a trust company, authorized to act in a fiduciary capacity.

(3) FIDUCIARY. Any trust institution or natural person acting as a trustee of a trust, an executor, an administrator with the will annexed, an administrator de bonis non, an administrator, a guardian or a conservator, whether solely or together with others, regardless of how or by whom appointed. "Fiduciary" also includes fiduciaries, a successor, substitute or added fiduciary and the successor in interest of a deceased fiduciary.

(4) SECURITY. Such term includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, trustees' share, investment trust debenture, unit, share or bond, voting trust certificate or, in general, any interest or instrument commonly known as a security or, with respect to any of the foregoing, any certificate, including a temporary or interim certificate of interest or participation, any receipt or certificate of deposit or any warrant or right to subscribe or purchase.

(b) Authority given fiduciaries. - A fiduciary which is authorized by the governing instrument, by judgment of a court, or by law to hold and retain a particular security, including a security issued in its individual corporate capacity by the fiduciary or any of the fiduciaries or any affiliated, associated or related issuer, is authorized, unless expressly prohibited by the governing instrument or by judgment of a court, to convert, exchange or surrender the particular security for, or to accept, receive, hold and retain any other security or securities:

(1) Into which the particular security may be converted;

(2) For which the particular security may be exchanged;

(3) Which may be issued in lieu of or in addition to the particular security; or

(4) Which may be derived from or declared on the particular security, as a result of any merger, consolidation, combination, reorganization, recapitalization, change of charter or name, dividend (in stock or otherwise), distribution, stock split, liquidation, exchange, tender offer, sale or lease of any or all of its business, properties, assets, rights, privileges or franchises, formation or organization of, or issuance of a security or securities by, a corporation or trust institution which is or becomes affiliated or associated with or related to the corporation or trust institution which issued the particular security, provision of, or applicable to, the particular security, or transaction similar to any one or more of the above, with the same rights, powers, authorities and duties as the fiduciary had with respect to the particular security, whether any such other security or the business of the issuer of such other security is substantially equivalent to the particular security or the business of the issuer of the particular security, whether any such other security is a legal investment of trust funds, whether there is a conflict of interest, and whether any such other security is a security issued in its individual corporate capacity by the fiduciary or any of the fiduciaries or by a corporation or trust institution which is or becomes affiliated or associated with or related to the fiduciary or any of the fiduciaries.

(c) Applicability. - This section shall apply to any security with respect to which subsection (b) of this section gives authority to a fiduciary, whether the fiduciary relationship was established before or after September 1, 1971, and whether such security was acquired before or after September 1, 1971.

A trustee, an executor or an administrator may render the estate in his hands to be administered liable for the payment for necessary service rendered to him, or for necessary repairs in and upon the estate, or for necessaries furnished to him, if he is or becomes insolvent without making payment and has not charged the estate with and obtained credit for such services, repairs or necessaries.

The liability of the estate may be enforced by the party rendering such services, or by whom such repairs were made, or necessaries furnished, or by his assignee, or by the personal representative of either, by petition filed in the circuit court, against such trustee, executor or administrator, or, if his authority has terminated, against his successor in the trust or administration; which petition may be filed in the county of the residence of the defendant, or in the county in which such estate is situate or is being administered. If, pending a civil action, the petitioner dies or becomes disabled, or the authority of the trustee is terminated, there may be a substitution of parties, in accordance with the Alabama Rules of Civil Procedure.

If, on the hearing, the evidence is sufficient, the court must enter a judgment charging the trust estate, or the assets subject to administration, with the payment of the sum ascertained to be due the petitioner and with the costs of the petition; and if the judgment is against an executor, an administrator or his successor, it must be preferred in payment, as are the fees and charges of administration.

If there is a pending action in which the circuit court has taken jurisdiction of the administration of the trusts or of the estate, the petition must be filed in and become a part of the proceedings in such action.

If the personal assets are insufficient and it is necessary to charge lands descended, or lands devised, with the payment of such claims, the heirs to whom the lands descended, or the devisees to whom they are devised must be made parties defendant to the petition.

All persons aiding and assisting trustees of any character, with a knowledge of their misconduct, in misapplying assets are directly accountable to the persons injured.

When assets are misapplied and can be traced in the hands of persons affected with notice of the misapplication, the trust attaches still to the assets, and the court will aid in restoring them to their legitimate purpose. A creditor of an estate may follow assets in the hands of legatees or distributees, though they receive them without notice.

The relief granted, in cases of trust, will always be so molded and framed as to render the trust effectual and secure the best interest of the parties.

(a) In addition to powers, remedies and rights which may be set forth in any will, trust agreement or other document which is the source of authority, a trustee, executor, administrator, guardian, or one acting in any other fiduciary capacity, whether an individual, corporation or other entity ("fiduciary") shall have the following powers, rights and remedies whether or not set forth in the will, trust agreement or other document which is the source of authority:

(1) To inspect, investigate or cause to be inspected and investigated, property held by the fiduciary, including interests in sole proprietorships, partnerships, or corporations and any assets owned by any such business enterprise, for the purpose of determining compliance with environmental law affecting such property and to respond to any actual or potential violation of any environmental law affecting property held by the fiduciary;

(2) To take, on behalf of the estate or trust, any action necessary to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held by the fiduciary, either before or after the initiation of an enforcement action by any governmental body;

(3) To refuse to accept property in trust if the fiduciary determines that any property to be donated or conveyed to the trust either is contaminated by any hazardous substance or is being used or has been used for any activity directly or indirectly involving any hazardous substance which could result in liability to the trust or otherwise impair the value of the assets held therein;

(4) To settle or compromise at any time any and all claims against the trust or estate which may be asserted by any governmental body or private party involving the alleged violation of any environmental law affecting property held in trust or in an estate;

(5) To disclaim any power granted by any document, statute, or rule of law which, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental law;

(6) To decline to serve as a fiduciary if the fiduciary reasonably believes that there is or may be a conflict of interest between the fiduciary in its or his fiduciary capacity and in its or his individual capacity because of potential claims or liabilities which may be asserted against the fiduciary on behalf of the trust or estate because of the type or condition of assets held therein.

(b) The fiduciary shall be entitled to charge the cost of any inspection, investigation, review, abatement, response, cleanup, or remedial action authorized herein against the income or principal of the trust or estate. A fiduciary shall not be personally liable to any beneficiary or other party for any decrease in value of assets in trust or in an estate by reason of the fiduciary's compliance or efforts to comply with any environmental law, specifically including any reporting requirement under such law. Neither the acceptance by the fiduciary of property or a failure by the fiduciary to inspect or investigate property shall be deemed to create any inference as to whether or not there is or may be any liability under any environmental law with respect to such property.

(c) For purposes of this section, "environmental law" means any federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment or human health. For purposes of this section, "hazardous substances" means any substance defined as hazardous or toxic or otherwise regulated by any environmental law.

(d) A fiduciary in its individual capacity shall not be considered an owner or operator of any property of the trust or estate for purposes of any environmental law.

In addition to the investments authorized by Section 19-3-120, by any other provision of law for the investment of funds held by a trustee, executor, administrator, guardian, conservator or other fiduciary, or by the will, trust agreement or other document which is the source of authority, such fiduciary may invest in and hold (1) interests, however evidenced, in any common trust fund or other collective investment fund maintained by any national or state chartered bank, trust company or savings and loan association having trust powers, or (2) securities of or other interests in any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, as from time to time amended, so long as the portfolio of such common trust fund, collective investment fund or investment company or investment trust consists of investments authorized with respect to such fiduciary by Section 19-3-120, by any other provision of law, or by the will, trust agreement or other document which is the source of authority. The fact that such fiduciary or any affiliate thereof is providing services to the investment company or investment trust as an investment advisor, sponsor, distributor, custodian, transfer agent, registrar, or otherwise, and is receiving reasonable remuneration for such services, shall not preclude such fiduciary from investing in the securities of such investment company or investment trust; provided, however, that with respect to any fiduciary account to which fees are charged for such services, the fiduciary shall disclose (by prospectus, account statement or otherwise) to the current income beneficiaries of such account or to any third party directing investments the basis (expressed as a percentage of asset value or otherwise) upon which the fee is calculated. This section shall not, insofar as such authorization may be prohibited by the Constitution of this state, authorize the investment of trust funds in the stock of any private corporations.

(a) When investing, reinvesting, purchasing, acquiring, exchanging, selling and managing property for the benefit of another, a trustee, executor, administrator, guardian, conservator or other fiduciary shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use to attain the purposes of the account. In making investment decisions, a fiduciary shall consider the role that the investment plays within the account's overall portfolio of assets and may consider the general economic conditions, the anticipated tax consequences of the investment, the anticipated duration of the account and the needs of the beneficiaries of the account.

(b) The propriety of an investment decision is to be determined by what a fiduciary knew or should have known at the time of the decision about the inherent nature and expected performance of the investment, the attributes of the account portfolio, the general economy, and the needs and objectives of the beneficiaries of the account as they existed at the time of the investment decision.

(c) Any fiduciary acting under a governing instrument shall not be liable to anyone whose interests arise from such instrument for the fiduciary's good faith reliance on the express provisions of such instrument. The standards set forth in this section may be expanded, restricted or eliminated by express provisions in a governing instrument.

(d) In the absence of an express provision to the contrary in a governing instrument, a fiduciary may without liability continue to hold property received into an account at its inception or subsequently added to it or acquired pursuant to proper authority if and as long as the fiduciary, in the exercise of good faith and of reasonable prudence, may consider that retention to be in the best interest of the account or in furtherance of the goals of the governing instrument. Such property may include, among other things, stock in the fiduciary if a corporation, and stock in any corporation controlling, controlled by or under common control with the fiduciary.

(e) Nothing in this section shall abrogate or restrict the power of the appropriate court in a proper case to direct or permit a fiduciary to deviate from the terms of a governing instrument regarding the acquisition, investment, reinvestment, exchange, retention, sale or management of property.

(f) The provisions of this section shall apply to all fiduciary relations now existing or hereafter created, but only to the fiduciary actions or inactions occurring after the effective date hereof.

(a) Unless otherwise authorized or directed by the court having jurisdiction thereof, or by the will, trust agreement or other document which is the source of authority, a trustee, executor, administrator, guardian or one acting in any other fiduciary capacity may, with the exercise of reasonable business prudence, in addition to any other investments now permitted by law, invest funds in securities or investments which, at the time of the making or purchase thereof, are included in one or more of the following classes:

(1) Bonds or other interest-bearing obligations of the United States of America, or payment of which the United States of America has guaranteed as to both principal and interest.

(2) Bonds issued by the federal land bank, under the act of congress of the United States of America, designated as "the Federal Farm Loan Act," and acts amendatory thereof.

(3) Bonds or other interest-bearing obligations of any state of the United States of America.

(4) General obligation bonds pledging the full faith and credit, of any county of the State of Alabama which county for a period of five years next preceding the purchase of said bonds shall not have made default in the payment of principal or interest on any of its funded obligations.

(5) Interest-bearing general obligations pledging the full faith and credit, including interest-bearing warrants, of any board of education of any county or municipality of the state of Alabama secured by pledge of the three-mill school tax.

(6) Promissory notes, bonds or other evidences of indebtedness secured directly or collaterally by mortgage or trust deed which is a first lien on improved real estate in this or any other state of the United States of America; provided, that:

a. No interest or participation in any note, bond or other evidence of indebtedness secured by mortgage shall hereafter be purchased for any fiduciary account unless the entire principal indebtedness secured by the mortgage shall at the time be controlled by the fiduciary, that:

b. No such interest or participation less than the entire indebtedness shall at any time be sold by the fiduciary to any person, estate, trust or other entity, not controlled by the fiduciary, and that:

c. No fiduciary shall hereafter purchase from any trust or estate under its control or from itself for any trust or estate any such loan, bond or other evidence of indebtedness secured by mortgage, or interest therein, unless the items so acquired shall in good faith and with due diligence have originally been made or acquired by the fiduciary for trust investment; and provided further, that this section shall not, insofar as the same is prohibited by the Constitution of this state, authorize the investment of such funds in the stocks or bonds of private corporations.

(7) As a deposit in the savings department of any bank which is a member of the Federal Deposit Insurance Corporation. In the event the fiduciary is such a bank, such deposit may be made in its own savings department, and in such event, it shall only be liable for interest thereon at the same rates, and subject to the same regulations as other savings deposits therein; provided, that any such deposit in said savings account shall not exceed the amount authorized to be insured by the Federal Deposit Insurance Corporation.

(8) Bonds, the issuance of which has been authorized by the director of the Alabama securities commission and which are secured directly or collaterally by mortgages or trust deeds which are first liens on improved real estate in this or any other state of the United States of America; provided, that the value by appraisal of the realty must be not less than one and one-half times the amount of any mortgage secured by said realty; except:

a. Mortgages guaranteed or insured in whole or in part by the Federal Housing Administrator, or

b. Mortgages guaranteed or insured in whole or in part by the Administrator of Veterans' Affairs of the United States. Nothing in this subdivision shall prohibit the bonds from being secured by more than one first lien. In the event that any, or all of the first liens securing the bond issue are satisfied, other securities authorized by law for the investment of trust funds may be substituted therefor.

(9) Obligations of the African Development Bank.

(b) The power herein given is in addition to and not in derogation of any power of investment given under existing law, but to the extent that any statute now in force is in conflict herewith, the same is hereby repealed.

A trustee, executor, administrator, guardian or one acting in any other fiduciary capacity may, with the exercise of reasonable business prudence, in addition to any other investments now permitted by law, invest funds in interest-bearing warrants of any county board of education or city board of education in the State of Alabama, which warrants are secured by a pledge of a special county ad valorem tax for schools or a special district ad valorem tax for schools.

It shall be lawful for trustees, executors, administrators, guardians and other fiduciaries, the State of Alabama and any of its departments, boards, institutions and agencies, and the municipalities, counties and other political subdivisions of the state to invest their funds and the moneys in their custody or possession eligible for investment in notes or bonds secured by mortgage or trust deed insured by the Secretary of Housing and Urban Development or his predecessor officer pursuant to the laws and regulations governing the insurance of such as now constituted or as hereafter amended and in debentures issued by such official.

It shall be lawful for trustees, executors, administrators, guardians and other fiduciaries to invest their funds and the moneys in their custody or possession eligible for investment in mortgages which have been accepted for insurance by the secretary of housing and urban development or his predecessor officer pursuant to Title two of the National Housing Act.

No law of this state requiring security upon which loans or investments may be made or prescribing the nature, amount or form of such security or prescribing or limiting the period for which loans or investments may be made shall be deemed to apply to loans or investments made pursuant to the foregoing paragraph.

It shall be lawful for trustees, executors, administrators, guardians and other fiduciaries, upon the termination of their fiduciary relationships, whether by revocation or otherwise, to make distribution of assets consisting of mortgages insured by the Secretary of Housing and Urban Development or his predecessor officer in cash rather than in kind, and in order to carry out the foregoing provision, such trustees, executors, administrators, guardians, and other fiduciaries, upon the termination of such fiduciary relationships, are hereby granted full power and authority to sell, transfer and deliver all such mortgages to other mortgagees approved by the secretary of housing and urban development or his predecessor officer, and the delivery of the proceeds of a bona fide sale of any such mortgage to the beneficial owner shall constitute full acquittance to such fiduciary as to such mortgage.

In addition to any other investment now permitted by law, a guardian or trustee may invest the funds of his ward or of the beneficiary of the trust in life, endowment or annuity contracts of legal reserve life insurance companies duly qualified and authorized to write such business in the State of Alabama; provided, however, that the annual premium or premiums on such contracts purchased by such guardian or trustee shall not exceed 25 percent of the income of the ward or the beneficiary for any calendar year preceding the date of such purchase. The contract must contain the following options after it has been in force for three years or less: a cash surrender value option, a paid-up insurance or endowment option, and an extended insurance or endowment option. Such contract may be issued on the life or lives of the ward or wards, or beneficiary or beneficiaries of the trust or upon the life or lives of persons in whose life or lives such ward or beneficiary of the trust has an insurable interest. The proceeds or avails of such contract shall be the sole property of the person or persons whose funds are invested therein. The contract or policy form may provide reasonable forfeiture for nonpayment of premiums and must be a form of contract which has been approved by the Commissioner of Insurance of the State of Alabama. Whether such contract so specifically provides or not, the guardian or trustee shall have the right without order of court to exercise for the use of the ward or beneficiary of the trust, any option contained in such contract; except, that the guardian or trustee shall not have the right to borrow on security of said policy or its proceeds unless authorized to do so by order of the court having jurisdiction of the guardianship or trust.

The power given in this section is in addition to and not in derogation of any power of investment given a guardian or trustee under existing law, but to the extent that any statute now in force is in conflict herewith, the same shall be and is hereby repealed.

Unless otherwise directed by the court having jurisdiction thereof, or by the will, trust agreement or other document which is the source of authority, any trustee, executor, administrator, guardian or one acting in any other fiduciary capacity, may, with the exercise of reasonable business prudence, in addition to any other investments now permitted by law, invest funds in the tax anticipation bonds, warrants, certificates of indebtedness or other security heretofore or hereafter issued by any county pursuant to Constitutional Amendment No. 76.

Bonds issued by the Tennessee Valley Authority under the provisions of the Tennessee Valley Authority Act of 1933, as amended or as the same may be hereafter amended, shall be legal investments for fiduciaries investing trust funds and for investments by savings banks and insurance companies organized under the laws of the state, and shall be eligible to be used as security for the deposit of funds of the state and its instrumentalities.

All debts or extensions of credit incurred pursuant to any provision of the act of Congress known as the National Housing Act, as the same now exists or may hereafter be amended or supplemented, and all debts or extensions of credit incurred pursuant to any act of congress relating to veterans' benefits, as the same now exists or may hereafter be amended or supplemented, shall be legal investments for banks, insurance companies, savings and loan associations, trustees, fiduciaries of all types and for any other person, firm or corporation, and shall be free from any restrictions of this state as to the nature, forms, or amounts of any loans or investments.

The provisions of this section supersede the provisions of any act defining legal investments in any way contrary to the provisions hereof.

A trustee's liability in investing funds in interest-bearing securities of the state or of the United States is governed by the general rules of law.

If the cestui que trust, or any of them, reside without the state, and the trustee has funds to lend or invest, the loan or investment whereof in the state of their residence is desirable, the trustee may there lend and invest them, under the authority of a judgment of the circuit court.

The trustee may obtain authority for the making of such loan or investment, by petition to the circuit court of the county in which the trust was created, or in which the trust is being administered. The petition must be verified by affidavit and must state who are the parties having interests in the funds, the nature of the interest, their places of residence, which of them, if any, are minors or of unsound mind, the amount and character of the fund to be lent or invested, the security upon which the loan is to be made, or the nature and character of the investment to be made, and the facts which render such loan or investment desirable. Notice must be given as in the case of an original complaint.

If, on the hearing, the court is satisfied from the evidence adduced, which may be oral or by deposition, that it would be to the interest of the cestui que trust that the loan or investment should be made, it must enter a judgment authorizing it.

As used in this article, the term "fiduciary" means the executor of a will, the administrator of a decedent's estate or the trustee of an express inter vivos or testamentary trust, and includes both individual and corporate fiduciaries.

If permitted by the trust instrument or will under which he serves or by order of a court having jurisdiction of the estate or trust, a fiduciary may enter into a partnership agreement or arrangement with others or accept the assignment of or otherwise acquire, hold and dispose of an interest in a partnership, and in so doing may become either a general or a limited partner. In any such case, as to creditors of or claimants against such partnership and as to the other members of such partnership, the liability, if any, of such fiduciary for the debts and other liabilities of the partnership, whether ex contractu or ex delicto or otherwise, shall be limited to the assets of the trust or estate, or so much thereof as may be necessary to discharge such debts and liabilities, but no personal liability shall attach to the fiduciary or to the beneficial owners of the assets of the trust or estate.

Nothing in this article shall be construed to prohibit a fiduciary from further limiting his liability, or the liability of the trust or estate which he represents, in any manner otherwise permitted by law.

When any deceased tenant in common, joint tenant or coparcener of real estate shall have devised any freehold interest in such estate to any person, with a contingent interest by way of remainder, substitution or executory devise to any other person, born or unborn, the circuit court may, on the complaint of any person interested, order partition of such estate to be made between the devisee or devisees, the surviving cotenant or cotenants and the person having such contingent interest; and the judgment shall bind the parties and the person having such contingent interest, his heirs and assigns.

In all cases where real estate is held by a trust created by deed and by reason of a change of circumstances, or in the condition of such real estate since the creation of such trust, the execution thereof in exact accordance with the terms of such deed has or shall become impossible or must necessarily fail to secure the objects manifestly intended by the grantor in said deed, the circuit court in the county wherein such real estate is situated may, on the complaint of the trustee or any party beneficially interested in the trust, order the sale of said real estate, or any part thereof, and the investment of the proceeds, either in other real estate or as trust funds generally may be by law invested, for the benefit of the party beneficially interested in such trust, in such manner as said court may deem the most proper to secure the object for which said trust was originally created, as near as may be, according to the intent of the original grantor appearing in the original deed. All parties interested in said real estate, by reason of said trust or as reversioners, shall be made parties to any action brought under this section.

The circuit court may, on application of any trustee under a will duly admitted to probate in this state, order the sale of any real estate within this state, devised to or held by such trustee in trust, whenever it will, in the opinion of the said court, best promote the interest of the beneficiaries under such trust, upon notice given to all parties in interest, when such sale is not prohibited by said will, and may make any orders necessary to protect the rights of all parties in interest and to carry the sale into full effect. Such application shall be made to the circuit court for the county within which the will was admitted to probate.

Said court shall order the fund realized from such sale to be invested by said trustee for the benefit of the parties interested in the trust, in such investments authorized by law for the investment of fiduciary funds.

The circuit court of the county in which a trustee resides, or in which a trust estate is created or is being administered, may authorize the removal of such estate to another state.

A cestui que trust or a trustee may obtain authority for the removal of a trust, by petition verified by affidavit, which must state the property to be removed, the place to which removal is desired, the names and residences of the parties having interest therein, which of them, if any, are minors or of unsound mind and the facts which show that the removal will be of benefit to the cestui que trust. Notice shall be given as in the case of an original complaint.

If, on the hearing, the court is satisfied from the evidence adduced, which may be oral or by deposition, that a removal would be to the interest of the cestui que trust, a judgment must be entered authorizing it. Before the execution of the judgment, the party or parties, at whose instance the removal is to be made, must, in the state to which the property is to be removed, before a court having jurisdiction, give bond with sufficient surety, to be approved by such court, in penalty and with condition that will fully protect all parties in interest from loss or injury by reason of the removal or because of the waste or negligence of the party or parties to whose care and custody such property is intrusted; which bond must be properly certified, filed in the circuit court and must, before removal, be approved by the circuit judge.

A trust is extinguished by the entire fulfillment of its object or by such object's becoming impossible or unlawful.

When an express trust is created for the payment or security of debts and, by the terms thereof, the trustee is not required to give bond with surety, any creditor interested therein may apply to the register or clerk of the circuit court of the county in which the trust property, or the most valuable portion thereof, may be, for an order requiring such trustee to give bond with surety for the faithful administration of the trust.

The application must be in writing, verified by affidavit, must state the nature and character of the trust and of the interest of the applicant therein and must state, in the opinion of the applicant, said interest is, or will be endangered, if bond with sureties is not required of such trustee; and, on the filing of such petition, the register or clerk must appoint a day for the hearing thereof, of which not less than five days' notice, by the service of summons to appear and answer, must be given the trustee, if he resides in the state, and if he resides without the state, notice must be given by publication for three successive weeks in some newspaper published in the county, if there be such paper, and if there be not, in the paper published nearest to such county.

The circuit court may accept the resignation of a trustee.

Upon the filing of a complaint by any person interested in the execution of a trust, including the settlor, the circuit court may remove any trustee who has violated or threatened to violate his trust; who is insolvent, or whose insolvency there is good reason to apprehend; who has removed from the state; or who, for any cause, is an unsuitable person to execute the trust; or the court may require such bonds as will effectually protect the interest of the parties; provided, that upon the filing of a complaint by any person interested in the execution of a trust, including the settlor, the circuit court may remove any trustee who has any pecuniary interest which may be adverse to the interests of the trust.

In all such cases where a successor trustee has not been named in the trust instrument, such court shall appoint a new trustee in the place of a trustee removed or may cause the trust to be executed by one of its own officers.

On the day appointed, or on any other day to which such application may be continued, if it appears that the applicant has a real, bona fide interest in the administration of the trust, and that by the terms thereof, the trustee is not required to give bond with surety, and that a majority in number and interest of all the creditors for whose benefit such trust may be created do not oppose such application, the register or clerk must make and enter an order requiring such trustee to give bond with at least two good and sufficient sureties, payable to such register or clerk, in such sum as the register or clerk may prescribe, subject to change on application to the judge, with condition for the faithful discharge of all the duties of such trustee, which bond must be approved, filed and recorded in his office.

If the trustee fails for five days from and after the making of such order, to give such bond, the register or clerk must make and enter an order removing him as a trustee, and may make and enter an order appointing a successor, of whom bond, with sureties, payable and conditioned as provided in Section 19-3-22 must be required.

Where there is trust property in another state, held under deed, will, marriage settlement, or otherwise, and the beneficiary owning the entire interest in such trust property has removed to or resides in this state and desires that the property may also be removed to this state, such beneficiary may, if of age, or, by next friend if a minor, make application to the register or clerk of the circuit court of the county in which such beneficiary resides, to appoint a trustee to receive such trust property and remove the same to this state.

The register or clerk must appoint a day for hearing such application, and notice thereof must be given by advertisement in some paper published in the county for three successive weeks or, if no paper is published in such county, by posting such notice at the courthouse door and at three other public places in the county three weeks before the day appointed for hearing the application; and a copy of such notice must be sent to the nonresident trustee of such trust estate, if there is one and his place of residence is known.

Upon the hearing of such application, if there is no good and sufficient reason to the contrary, such register or clerk must appoint a trustee living in the county wherein such beneficiary resides to receive and remove the trust property to such county.

Such trustee, before he enters on the discharge of the duties of such trust, must give bond, with good and sufficient surety payable to the register or clerk, in double the amount of the supposed value of such trust estate, conditioned that he will faithfully execute the trust.

A fee of $5.00, to be paid to the register or clerk for his services rendered under the provisions of Sections 19-3-230 through 19-3-233, must be paid by the party making the application; and such party may be reimbursed for this and all other expenses growing out of such application from such trust fund when received by the trustee appointed by such register or clerk.

It is the duty of the trustee of an express trust created for the payment of debts, within 20 days after entering upon the execution of such trust, to make an inventory of the entire trust property so far as the same has come to his possession or knowledge, describing the real estate and grouping and classifying the personal property in as brief and comprehensive manner as may be consistent with its proper identification and appraisement, and stating the amount and character of all choses in action, with the names of debtors, belonging to the trust. In reducing such inventory to writing, the trustee must leave appropriate spaces opposite each article or item, with proper caption, in which spaces the appraised value may be inserted by the appraisers. The trustee must, within the time above stipulated, file, in the office of the register or clerk of the county in which the most valuable portion of the trust property may be, two copies of such inventory, each of which shall be duly verified by his affidavit; and if there be property in more than one county, a separate inventory of the property in each county must be made and filed. Supplemental inventories may be made in like manner.

On the filing of such inventory, the register or clerk must indorse upon each of such copies the fact and date of such filing and must appoint three competent and disinterested persons, who must not be of kin or of counsel to any person interested in the trust estate, appraisers of and in each county in which any part of the trust property may be, and must attach to the commission one of the copies of such inventory, filed by the trustee; and the appraisers must, in writing, appraise at its true value, the property described in such inventory, and set down in figures opposite each item, the appraised value thereof, add each column and carry forward the result so as to show the total valuation placed upon such property, and verify the same by affidavit and make return thereof to the register or clerk who must record the commission to the appraisers and such combined inventory and appraisement, together with the affidavits appended thereto. The other copy of the inventory filed by the trustee must be carefully preserved by the register or clerk, free to examination of all persons, but must not be recorded. The appraisers are severally entitled to $2.00 for each day's service in making such appraisement, to be taxed as costs and collected and paid over by the register or clerk.

The circuit court may appoint a trustee whenever there is a vacancy, and the declaration of trust does not provide a practicable method of appointment.

When a trust exists without any appointed trustee, or where all the trustees renounce, die or are discharged, the circuit court of the county where the trust property, or some portion thereof, is situated, must appoint another trustee, and direct the execution of the trust. The court may, in its discretion, appoint the original number, or any less number of trustees.

On the death, renunciation or discharge of one of several cotrustees the trust survives to the others.

Upon the death of a sole trustee, his personal representative must make, with the succeeding trustee, settlement of the accounts of the deceased trustee.

If the value of the trust estate, as appraised by the appraisers, exceeds $1,000.00, the trustee, or assignor, or any creditor, or any number of them, may file a petition in the circuit court of the county in which the inventory and appraisement are required to be filed, for the administration of the trust. Such petition must briefly allege the making of the assignment, the value of the trust estate, as shown by the appraisement, and the names and residences of all creditors, so far as known, and pray that the trust be administered by the circuit court.

Upon the filing of such petition the register or clerk must submit the same, together with the inventory and appraisement, upon the original papers, to the circuit judge and the circuit judge must make an order designating a day, not less than two nor more than 12 months from the date thereof, by or on which day all claims against the trust estate must be presented, verified by affidavit.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Upon the making of such order the register or clerk must give notice thereof by mail, postage prepaid, to each creditor whose name and address he may, by diligent inquiry and investigation, ascertain from the trustee, or assignor, or the record of the deed of assignment in the office of the judge of probate, or any other available source of information, and must also give notice by publication once a week for three successive weeks in a newspaper published in the county, or if there be no such paper, by posting the notice at the courthouse door for the same length of time. Such notice may be substantially in the following form:

"To the creditors of A.B., of _____:

"The said A.B., having made an assignment for the benefit of creditors, and C.D. having filed his petition for the administration of such trust by the circuit court, and the circuit judge having made an order designating the _____ day of _____, as a day by or on which all claims of creditors must be presented; all parties in interest are hereby notified of the filing of such petition, and all persons having claims against the trust estate are required to file the same, or a statement thereof, verified by affidavit, in the office of the register or clerk at _____, by or on the day above specified, or the same will be barred.

This the ____ day of ______

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

Repealed by Act 2000-675, § 2, and Act 2001-344, § 1, effective January 1, 2001.

All claims against the trust estate must be presented by or on the day specified in such order and notice, by filing the claim, or a statement thereof, in the office of the register or clerk, verified as claims against the estate of a decedent are required to be verified, before a notary public or other officer authorized to take and certify affidavits within or beyond the state; and all claims not so presented are precluded from sharing in the assignment or participating in any dividend that may be made from the trust estate, until all presented and allowed claims shall have been paid in full. But when a claim has been so presented prior to giving of such notice, a second presentation is not necessary. Any defect or insufficiency in the affidavit may be remedied by amendment at any time. The register or clerk must give to the creditor, his agent or attorney a receipt for his claim, and must indorse thereon the date of filing and sign his name thereto.

A trustee ordinarily takes no greater estate than is needed for the support of the trust which he is to administer. Whenever a trust estate is created, a legal estate sufficient for the purpose of the trust shall, if possible, be implied in the trustee, whatever may be the limitations in the instrument creating the trust; and, although a legal estate may be limited to the trustee to the fullest extent as to him and his heirs, yet it shall not be carried further than the complete execution of the trust requires.

The register or clerk must keep a docket in which he must enter each claim, showing under appropriate captions, the name and address of the claimant, the amount and character of his claim, when due, by whom certified and when filed, with appropriate spaces for the insertion of the amount of each claim allowed and the amount of the dividend thereon at each distribution of the trust estate.

Notwithstanding any provision to the contrary in the governing instrument or under any other law of this state and except as otherwise provided by judgment of a court or by a provision of the governing instrument, which in either case is entered or made after October 1, 1971, and expressly limits the applicability of this article, the trustee of a trust, whenever created, which is or is treated as a private foundation as defined in Section 509 of the Internal Revenue Code of 1954, a charitable trust as defined in Section 4947(a)(1) of the Internal Revenue Code of 1954, or a split-interest trust as defined in Section 4947(a)(2) of the Internal Revenue Code of 1954, during the period it is or is treated as a private foundation, charitable trust or split-interest trust as so defined:

(1) Shall not engage in any act of self-dealing as defined in Section 4941(d) thereof;

(2) Shall distribute for each taxable year not less than such amounts at such time and in such manner as not to subject the trust to the tax on undistributed income imposed by Section 4942 thereof;

(3) Shall not, if Section 4943 thereof is applicable, retain any excess business holdings as defined in subsection (c) of that section beyond the period permitted by that section;

(4) Shall not make any investment in such manner as to subject the trust to tax under Section 4944 thereof; and

(5) Shall not make any taxable expenditure as defined in Section 4945(d) thereof.

(a) The trustee of a trust, whenever created, which is or is treated as a private foundation as defined in Section 509 of the Internal Revenue Code of 1954, a charitable trust as defined in Section 4947(a)(1) of the Internal Revenue Code of 1954, or a split-interest trust as defined in Section 4947(a)(2) of the Internal Revenue Code of 1954, may amend the terms of the governing instrument to the extent necessary to bring the trust into conformity with the requirements for:

(1) Termination of private foundation status in the manner described in Section 507(b) thereof;

(2) Exemption of the trust from the taxes imposed by Sections 4941 to 4945, inclusive, thereof; or

(3) Exclusion of the trust from private foundation status under Section 509(a)(3) thereof, and for this latter purpose may release, extinguish or renounce any power contained in the governing instrument, may reduce or limit the charitable organizations or classes of charitable organizations in whose favor a power to select may be exercised and may appoint new or additional trustees.

(b) No amendment of the governing instrument shall be required in order to make effective the requirements of Section 19-3-300.

(c) If the trust is for the benefit of one or more named charitable organizations, the trustee shall first obtain the written consent of those organizations before making any amendment under subdivision (3) of subsection (a) of this section.

Nothing in this article shall impair the rights and powers of the courts or the attorney general of this state with respect to any trust. The provisions of Sections 19-3-300 and 19-3-301 shall not apply to any trust to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of the instrument governing such trust and that the same may not properly be changed to conform to such sections.

All references to sections of the Internal Revenue Code of 1954 shall include future amendments to such sections and corresponding provisions of future internal revenue laws.

All claims to which no objection is made in the manner provided in Sections 19-3-32 and 19-3-33, within three months after the expiration of the time prescribed for the presentation of claims, stand allowed without further proof.

At any time within three months after the expiration of the time allowed for the presentation of claims, or at any time prior thereto, the trustee or assignor or any creditor or party in interest may object to the allowance of any claim filed against the trust estate, by filing objections thereto in writing.

As used in this article, the following words and phrases have the following meanings:

(1) AFFILIATE. In the case of any trustee that is a corporation or other entity, any corporation or other entity controlling, controlled by or under common control with, such trustee.

(2) BENEFICIARY. A person who has any present or future interest, vested or contingent, in the trust; the owner of an interest by assignment or other transfer as it relates to a charitable trust; and any other person entitled to enforce the trust.

(3) CURRENT BENEFICIARY. A beneficiary who is currently receiving or is entitled to currently receive income or principal cash.

(4) INDIVIDUAL TRUSTEE. A trustee who is a natural person.

(5) PRUDENT PERSON. A trustee who a. when investing, reinvesting, purchasing, acquiring, exchanging, selling and managing the trust estate acts with the care, skill, prudence and diligence required of such trustee under Section 19-3-120.2, or if such statute is not applicable to the trust, under the provisions of such other applicable provision of law, and b. in connection with other matters relating to the administration of the trust estate, observes the standards in dealing with the trust estate that would be observed by a prudent person dealing with the property of another in view of the purposes of the trust. If a trustee has special skills or is named as trustee on the basis of representations of special skills or expertise, the trustee is under a duty to use those skills.

(6) RELATED PARTY.

a. In the case of an individual trustee, any corporation, partnership (limited or general), trust company, association or other entity with respect to which the individual trustee holds any legal or beneficial ownership as shareholder, partner or otherwise, whether or not such interest is a controlling interest and whether such interest is direct or indirect, or holds any position as director, trustee, partner, officer or otherwise that allows such trustee to participate in the management of such corporation, partnership, association or other entity, whether or not such interest is a controlling interest and whether such interest is direct or indirect.

b. In the case of any trustee which is a trustee entity 1. any other corporation, partnership (limited or general), association, trust company or other entity in which the trustee entity holds any legal or beneficial ownership as shareholder, partner or otherwise, whether or not such interest is a controlling interest, 2. any corporation, partnership (limited or general), association, trust company or other entity which holds any legal or beneficial ownership interest in the trustee entity as shareholder, partner or otherwise, whether or not such interest is a controlling interest and whether such interest is direct or indirect, 3. any director, trustee, officer or employee, or person holding a similar position, of the trustee entity or any corporation, partnership (limited or general), trust company, association or other entity constituting a related party of the trustee entity, and 4. any other corporation, partnership (limited or general), trust company, association or other entity which has any directors, trustees, officers or employees in common with the trustee entity, whether or not the interests of such directors, trustees, officers or employees constitute a controlling interest in either entity.

(7) SETTLOR. The creator of a trust.

(8) TRUST. An express trust created by a trust instrument, including a will, whereby a trustee has the duty to administer a trust estate for the benefit of named or otherwise described beneficiaries. "Trust" does not include a resulting or constructive trust, a business trust which provides for certificates to be issued to the beneficiary, a voting trust, security instrument, a trust created by the judgment or decree of a court (unless this article is specifically incorporated by reference), a liquidation trust, a trust for the primary purpose of paying salaries, wages, pensions, or employee benefits of any kind, a trust under an indenture of trust or similar document created by a public or private entity in connection with the issuance and/or sale of any obligations of such entity or to secure any such obligations, an instrument wherein a person is a nominee or an escrowee for another, or a trust created in deposits in any financial institution.

(9) TRUSTEE. An original, added or successor trustee and co-trustees where applicable; in the case of a trustee which is a trustee entity, includes its successor by merger, consolidation, or other reorganization.

(10) TRUSTEE ENTITY. Any trustee which is a corporation (including without limitation any banking corporation), partnership (limited or general), association, trust company, national banking association, savings bank or other entity and which is authorized to engage in trust business in this state.

From the creation of the trust until final distribution of the assets from the trust, a trustee may, without prior court authorization, perform every act that a prudent person would perform for the purpose of the trust, including but not limited to, the powers specified in this article.

Unless otherwise expressly limited in the trust instrument, or by an order of court, a trustee may, acting as a prudent person would in light of the purpose of the trust, perform any or all of the following acts:

(1) Receive (subject to the trustee's approval), collect, hold and retain for such time as the trustee shall deem advisable, property, real or personal, including property in which the trustee or any related party is personally interested. The trustee is specifically authorized to receive, collect, hold, and retain common or preferred stock or other interest in the trustee or any related party. In the absence of an express provision to the contrary in a trust instrument, a trustee may without liability continue to hold property received into an account at its inception or subsequently added to it or acquired pursuant to proper authority if and as long as the trustee, in the exercise of good faith and of reasonable prudence, may consider that retention to be in the best interest of the account or in furtherance of the purposes of the trust. Such property may include, among other things, stock in the trustee if a trustee entity, and stock in any related party;

(2) Sell, purchase, exchange, execute options for, partition, or otherwise dispose of or acquire, any property or interest therein which the trustee may hold from time to time, at public or private sale or otherwise, including such transactions with or involving any related party as principal or agent, upon such terms and conditions, including credit, and for such consideration as the trustee shall deem advisable, including reasonable compensation for any such related party, and to transfer and convey the property or interest therein which is at the disposal of the trustee, in fee simple absolute or otherwise free of all trust; provided that the trustee or the related party discloses to the current beneficiary in any reasonable manner (including by confirmation, account statement, prospectus, or otherwise) the terms of the transaction, including any fee paid to the related party. For purposes of the immediately preceding sentence, compensation charged by or paid to a related party shall be conclusively presumed to be reasonable if such compensation is consistent with any standard fee table maintained by the related party in the ordinary course of business;

(3) Invest and reinvest the trust assets in securities, investments and other property which are authorized as investments for trust assets under Section 19-3-120, or under any other applicable statute or law, and, in addition to such securities, investments and other property, to invest and reinvest the trust assets in any and all other kinds of securities, investments and other property, without regard to type or classification, subject only to compliance in connection with the selection of such securities, investments and other investments with the standards of prudence applicable under Section 19-3-120.2, or if such statute is not applicable to the trust, under the provisions of such other applicable provision of law. Nothing contained in this article shall, insofar as such authorization may be prohibited by the Constitution of this state, authorize the investment of trust assets in the stock of any private corporation;

(4) Continue or participate in the operation of any business or other enterprise in which the trust owns an interest and to effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise;

(5) Acquire or dispose of an asset for cash or on credit at a public or private sale; manage, develop, improve, exchange, partition, change the character of, or abandon a trust asset or any interest in it; encumber, mortgage, or pledge a trust asset for a term within or extending beyond the term of the trust in connection with the exercise of any power vested in the trustee;

(6) Make ordinary or extraordinary repairs or alterations in buildings or other structures; demolish any improvements; or raze existing or erect new party walls or buildings;

(7) Subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving consideration; or dedicate easements to public use without consideration;

(8) Enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the trust;

(9) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(10) Grant an option involving disposition of a trust asset or take an option for the acquisition of any asset;

(11) Pay from income or principal, as determined in accordance with the provisions of Article 12 of Chapter 3 of Title 19, or other applicable provisions of law, any and all expenses reasonably necessary for the administration of the trust including interest, taxes, insurance premiums, assessments, agents' fees or compensation, trustees' fees or compensation, including additional fees for extraordinary services and, fees to related parties, and other expenses incurred in the collection, care, administration, and protection of the trust estate;

(12) Receive additional property from any source and to administer the additional property as a portion of the appropriate trust estate under the management of the trustee, provided that the trustee shall not be required to receive additional property without the trustee's consent;

(13) Deposit funds in a bank or other financial institution, including in a separate department of the trustee or in any related party;

(14) Borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the trustee shall deem advisable, including the power to borrow from any related party, for the purpose of paying debts, taxes, or other charges against the trust or any part thereof, for the purchase of any authorized asset, for the operation of any business enterprise, or for any other need to achieve the purpose of the trust, in any form; and to mortgage, pledge, or otherwise encumber such portion of the trust estate as may be required to secure the loan or loans; and to renew existing loans;

(15) Make advances for the benefit or protection of the trust and for any or all expenses, losses and liabilities sustained in the administration of the trust or as a result of the holding or ownership of any asset by the trust, for which advances the trustee shall be entitled to receive interest at any commercially reasonable rate of interest set by the trustee and which advances, together with interest, shall constitute a lien on the trust assets as against the beneficiaries;

(16) Vote shares of stock or other securities, in person or by special, limited, or general proxy, with or without power of substitution, or to determine to not vote such shares of stock or other securities;

(17) Hold any security at a qualified depository in the name of a nominee or in other form without disclosure of the fiduciary relationship, so that title to the security may pass by delivery; but the trustee shall be liable for any act of the nominee in connection with the security so held;

(18) Exercise all options, rights, and privileges to convert stocks, bonds, debentures, notes, mortgages, or other property into other stocks, bonds, debentures, notes, mortgages, or other property, and to subscribe for other or additional stocks, bonds, debentures, notes, mortgages, or other property so acquired as investments of the trust so long as the trustee shall deem advisable;

(19) Unite with other owners of property in carrying out any plans for the consolidation or merger, dissolution or liquidation, foreclosure, lease, or sale of the property or the incorporation or re-incorporation, reorganization or readjustment of the capital or financial structure of any corporation, partnership, company, or association, the securities of which may form any portion of the trust estate; to become and serve as a member of a stockholders' or bondholders' protective committee; to deposit securities in accordance with any plan agreed upon; to pay any assessments, expenses, or sums of money that may be required for the protection or furtherance of the interest of the beneficiaries of any trust with reference to any such plan; and to receive as investments of a trust any securities issued as a result of the execution of such plan;

(20) Modify the interest rate from time to time on any obligation, whether secured or unsecured, constituting a part of any trust;

(21) Continue any obligation, whether secured or unsecured, upon and after maturity, with or without renewal or extension, upon such terms as the trustee shall deem advisable, without regard to the value of the security, if any, at the time of the continuance;

(22) Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the trustee holds a mortgage, pledge, or other lien upon property of another person, the trustee may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by the lien;

(23) Carry such insurance coverage, including public liability, for such hazards and in such amounts, either in stock companies or in mutual companies, as the trustee shall deem advisable in connection with holding and administering the trust estate, including to insure the trust assets and to insure the trustee against liability, and to pay the premiums for such insurance;

(24) In the discretion of the trustee, resign as trustee by giving not less than thirty days' written notice to the adult current beneficiaries, or if none then a court of competent jurisdiction, who shall appoint the successor trustee. If no successor is appointed by the adult current beneficiaries within the thirty-day notice period, the trustee may petition a court of competent jurisdiction to appoint a successor trustee. The successor trustee shall not be liable for the actions or inactions of any prior trustee;

(25) Institute and defend any and all suits or legal proceedings related to said trust estate, in any jurisdiction; and to employ counsel, expert witnesses or other agents; and to compromise, adjust, submit to arbitration, bring or defend actions on, abandon, or otherwise deal with and settle any dispute or claim in favor of or against the trust estate as the trustee shall deem advisable (the trustee's decision shall be conclusive between the trustee and the beneficiaries of the trust and the person against or for whom the dispute or claim is asserted, in the absence of fraud by such persons, and, in the absence of fraud, bad faith, or gross negligence of the trustee, shall be conclusive between the trustee and the beneficiaries of the trust);

(26) Employ and compensate, out of income or principal, or both, and in such proportion as the trustee shall deem advisable (subject to any applicable requirements of Article 12 of Chapter 3 of Title 19), persons deemed by the trustee needful to advise or assist in the proper management and administration of the trust, including, but not limited to, agents, auditors (including public accountants, certified public accountants or internal auditors), brokers, attorneys-at-law, attorneys-in-fact, investment bankers, investment advisors, rental agents, realtors, appraisers, and tax specialists (including any related party, so long as the relationship and the fees charged are reasonable and disclosed in any reasonable manner to the current beneficiaries); and to do so without liability for any neglect, omission, misconduct, or default of the agent or representative, provided the trustee acted as a prudent person in selecting and monitoring the agent or representative. For purposes of the immediately preceding sentence, compensation charged by or paid to a related party shall be conclusively presumed to be reasonable if such compensation is consistent with any standard fee table maintained by the related party in the ordinary course of business;

(27) Acquire, receive, hold, and retain undivided the principal of several trusts created by a single instrument until division shall become necessary in order to make distributions; to hold, manage, invest, reinvest, and account for the several shares or parts of shares by appropriate entries in the trustee's books of account and to allocate to each share or part of share its proportionate part of all receipts and expenses; provided, however, that this subdivision shall not defer the vesting in possession of any share or part of share of the trust estate;

(28) Make distribution of principal assets of the trust in kind or in cash, or partially in kind and partially in cash, in divided or undivided interests, as the trustee finds to be most practicable and for the best interests of the distributees, and the trustee may distribute types of assets differently among the distributees; and to determine the value of principal assets for the purpose of making distribution thereof if and when there is more than one distributee thereof, which determination shall be binding upon the distributees unless clearly capricious, erroneous, and inequitable;

(29) Make payments in money, or in property in lieu of money, to or for the benefit of a minor or incompetent in any one or more of the following ways:

a. Directly to the minor or incompetent;

b. Directly in payment for the support, care, maintenance, education, and medical, surgical, hospital, or other institutional care of the minor or incompetent;

c. To the legal or natural guardian of the minor or incompetent; or

d. To any other person, whether or not appointed guardian of the person by any court, who shall, in fact, have the care and custody of the person of the minor or incompetent. The trustee shall not be under any duty to see to the application of the payments so made if the trustee acted as a prudent person in the selection of the person, including the minor or incompetent, to whom the payments were made; and the receipt of the person shall be full acquittance to the trustee;

(30) Allocate items of income or expense to either trust income or principal, as determined in accordance with the provisions of Article 12 of Chapter 3 of Title 19, or other applicable provisions of law, including creation of proper and reasonable reserves for taxes, assessments, insurance premiums, depreciation, obsolescence or amortization, depletion in minerals or timber properties, repairs, improvements, and general maintenance of buildings or other property; and

(31) Make contracts and to execute deeds and instruments, under seal or otherwise, as may be necessary in the exercise of the powers granted in this article.

If a trustee has determined that the market value of a trust is less than twenty-five thousand dollars ($25,000.00) and that, relative to the cost of administrating the trust, continuance pursuant to its existing terms will defeat or substantially impair the accomplishment of its purposes, the trustee may terminate the trust and distribute the trust property, including principal and undistributed income to the beneficiaries in a manner which conforms as nearly as possible with the intent of the settlor. The trustee may enter into agreements or make other provisions necessary or appropriate to protect the interest of the beneficiaries and the trustee to carry out the intent and purpose of the trust. This section shall apply to all trusts, without regard to the dispositive provisions of the trust instrument, unless the trust instrument expressly provides that the trustee may not terminate the trust pursuant to this section.

(a) Due to the inherent conflict of interest that exists when a trustee is also a beneficiary, unless the terms of a trust refer specifically to this section and provide to the contrary, a trustee shall not perform any of the following on behalf of or for the benefit of a beneficiary who is also a trustee:

(1) Make discretionary distributions of either principal or income for the benefit of the trustee, except to provide for the health, education, maintenance, or support of the trustee as described under Internal Revenue Code Sections 2041 and 2514, as amended.

(2) Make discretionary allocations of receipts or expenses as between principal and income, unless the trustee has no power to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of the fiduciary duties of the trustee.

(3) Make discretionary distributions of either principal or income to satisfy any legal or support obligations of the trustee. Nothing in this section shall be construed as a general power of appointment for any trustee.

(b) Any of the proscribed powers enumerated in this section that are conferred upon two or more trustees may be exercised by the trustees who are not beneficiaries of the trust. If there is no trustee who is not a beneficiary, any party in interest, as defined in subsection (d) below, may apply to a court of competent jurisdiction to appoint an independent trustee and the power may be exercised by the independent trustee appointed by the court.

(c) A person who has the right to remove or to replace a trustee does not possess nor may that person be deemed to possess, by virtue of having that right, the powers of the trustee that is subject to removal or to replacement.

(d) For purposes of this article, the parties in interest of a trust shall include any of the following:

(1) If the trust is revocable or amendable and the settlor is not incapacitated, the party in interest is the settlor.

(2) If the trust is revocable or amendable and the settlor is incapacitated, the party in interest is the legal representative of the settlor under applicable law or the donee of the settlor under a durable power of attorney that is sufficient to grant the authority.

(3) If the trust is not revocable or amendable, the parties in interest are any of the following:

a. Each trustee then serving;

b. Each current beneficiary then in existence or, if any current beneficiary has not attained majority or is otherwise incapacitated, the legal representative of the current beneficiary under applicable law or the donee of the current beneficiary under a durable power of attorney that is sufficient to grant the authority; and

c. Each remainder beneficiary then in existence or, if any remainder beneficiary has not attained majority or is otherwise incapacitated, the legal representative of the beneficiary under applicable law or the donee of the beneficiary under a durable power of attorney that is sufficient to grant the authority.

If two or more persons are appointed co-trustees and unless the trust instrument provides otherwise, the concurrence of all is required on all acts connected with the administration of the trust. This restriction does not apply:

(1) When any co-trustee receives and receipts for property due the trust,

(2) When the concurrence of all cannot readily be obtained in time reasonably available for emergency action necessary to preserve the trust estate, or

(3) When a co-trustee has been delegated to act for the others.

If any trustee defends or prosecutes any proceeding in good faith, whether successful or not, the trustee is entitled to receive from the trust estate reasonable expenses and disbursements, including, but not limited to, attorneys' fees incurred.

The provisions of this article shall apply to all trusts existing on July 7, 1995 and all trusts created after July 7, 1995. As applied to trusts existing on July 7, 1995, this article governs only decisions or actions occurring after July 7, 1995. Notwithstanding the provisions of this section, the provisions of Section 19-3-324 shall not apply to trusts created under a document executed before July 7, 1995, in either of the following circumstances:

(1) If the trust is revocable or amendable, the settlor revokes or amends the trust at any time to provide that the trust shall not be subject to this section.

(2) If the trust is irrevocable, all parties in interest, as defined in subsection (d)(3) of Section 19-3-324, elect affirmatively not to be subject to the application of this section, through a written declaration executed in the manner prescribed for the recordation of deeds in this state and delivered to the trustee. The election shall be made on or before the later of three years after July 7, 1995, or three years after the date on which the trust becomes irrevocable. Prior to the effectiveness of any timely election by the parties in interest of a trust not to be subject to the provisions of Section 19-3-324, the provisions of said Section 19-3-324, to the extent otherwise applicable, shall continue to apply to the trust.

Nothing contained in this article, other than the provisions of Section 19-3-324, to the extent Section 19-3-324 is applicable to a trust pursuant to Section 19-3-327, shall be construed to abrogate any right, authority, or discretion which a trustee would have under the terms of the trust instrument, by law or otherwise in the absence of this article, including without limitation, the following provisions: Section 5-11A-12, Article 2 of Chapter 11A of Title 5, Sections 19-3-11, 19-3-120.1, 19-3-120.2, Article 12 of Chapter 3 of this title, and Chapter 4A of this title.

Within 30 days after the expiration of the time allowed for filing objections to claims, the register or clerk must appoint a time, not less than 20 nor more than 60 days thereafter, for the hearing of such objections as have been filed; and of the nature of the objections and the time appointed for such hearing, he must give notice to each person whose claim is contested, by citation to be served upon him, his agent or attorney, or, if he be a nonresident and have no resident agent or attorney, such citation must be sent by mail, postage prepaid, to such claimant at his post-office address.

On the day appointed for the hearing, or any day to which the same may be continued, the register or clerk must proceed to hear and note the testimony for and against the contested claim, the verified claim or statement thereof being prima facie evidence of its correctness, and must make an order allowing or disallowing the claim, in whole or in part, according to the evidence.

Within three months after the expiration of the time allowed for the filing of objections to claims, the trustee must render, under oath, to the register or clerk an account charging himself with all the moneys of the trust estate which have come into his possession, or with which he is chargeable, and crediting himself with all sums to which he is entitled as credits, and must file therewith the vouchers on which he relies to sustain such credits. A similar account must be filed every six months thereafter.

Upon the filing of such account the register or clerk must appoint a day, not less than 20 nor more than 60 days thereafter, to hear and pass upon the account, and must give notice thereof by mail, postage prepaid, to each creditor, his agent or attorney and to the assignor.

Upon the day so appointed, or any day to which the hearing may be continued, the register or clerk must proceed to examine and audit the account; and upon such auditing, the assignor or any creditor or party in interest, his representative or transferee, may move the register or clerk to charge the trustee with sums other than those with which he has charged himself, or may object to the allowance of any item for which he claims credit; and such matters must be heard and the account stated and passed upon by the register or clerk and distribution made and judgment to creditors as in insolvent estates administered in the court of probate; and after deducting the costs and expenses of administration, including five percent commissions to the trustee on the amount of money with which he is charged, and the allowance of reasonable charges for the preparation of the deed of assignment, and after the discharge of all liens or claims having priority, the register or clerk must enter judgment to each creditor whose claim has been allowed, his proportion of such money, reserving in the hands of the trustee a ratable proportion for such claims as may be then contested and undecided; and if no appeal is taken, as provided in Section 19-3-38, and prosecuted to effect, the register or clerk may issue execution upon such judgments, against the trustee, and the sureties on his bond, if he has given bond. Upon application to the register or clerk by the assignee or any party in interest, such compensation of the assignee may be increased or diminished by the register or clerk for good cause shown.

Upon a hearing before the register or clerk under any of the provisions of this article, any competent legal evidence, written or oral, may be received. All such evidence must be noted and oral testimony reduced to writing by the register or clerk. Within 10 days thereafter, either party may file exceptions to the action or conclusion of the register or clerk, and may have the same reviewed by the circuit judge upon 10 days' notice to the other party, such review to be without any presumption in favor of the correctness of the action or conclusion of the register or clerk. From the decision of the circuit judge thereon an appeal lies to the court of civil appeals or the supreme court within 42 days.

Upon the application of the trustee, the court may authorize the compromise of any bad and doubtful debts or choses in action belonging to the trust estate, or the sale thereof to the highest bidder, on such terms and notice as the court may prescribe.

A trustee is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by him in the performance of his trust. He is entitled to the repayment of even unlawful expenditures, made in good faith, if they were productive of actual benefit to the estate.

The trustee may make sale of any real estate or interest therein belonging to the trust estate, at public outcry to the highest bidder, after giving notice thereof by publication once a week for three successive weeks in a newspaper published in the county where the real estate is situated, or, if there be no such paper, by posting notice at the courthouse door for the same length of time; and of such sale the trustee must also give notice by mail, postage prepaid, to each creditor, in time to reach him 10 days before the day of sale. But nothing contained in this section shall prevent the assignee from exercising the powers of sale or other powers conferred by the deed of assignment, unless specially restrained from so doing by an order made in writing by the circuit judge and filed in the court.

If the trustee shall fail to make settlement, partial or final, as required in this article he may be compelled to do so, by citation to be issued by the register or clerk on order of the court, at the instance of any creditor or party interested in the trust, in all respects as executors and administrators may be compelled to make settlements in the court of probate; or, upon motion of a majority in value of the creditors, the court must remove such defaulting trustee and appoint another in his stead, who may be nominated by the creditors, as provided by this Code, for the nomination of an administrator of an insolvent estate by the creditors thereof.

Whenever any trustee shall file any annual, partial or final settlement in any court having jurisdiction thereof, the court shall, at the request of such trustee, require that notice thereof be given in the same manner as required by law in cases of final settlements, and any order or judgment of the court on such settlement after such notice shall be final and conclusive as to all items of receipts and disbursements, and other transactions and matters shown therein, and as to all fees and compensation fixed or allowed to any such trustee and attorney, and appeals therefrom shall and must be taken in the manner provided for from any other final judgments of such court. Thereafter, at any time prior to final settlement, the account may be reopened by the court on motion or petition of the trustee, beneficiary or other party having an interest in the estate, for amendment or revision, if it later appears that the account is incorrect, either because of fraud or mistake.

(a) Upon any annual, partial or final settlement made by any trustee, the court having jurisdiction thereof may fix, determine and allow the fees or other compensation to which such trustee is entitled from an estate up to the time of such settlement, and may also fix, determine and allow an attorney's fee or compensation to be paid from such estate to attorneys representing such trustee for services rendered to the time of such settlement.

(b) In the allowance of fees to trustees and their attorneys on final settlement, the court shall take into consideration such fees as may have been allowed and paid to them prior to such final settlement, but such trustees shall be entitled to full credit for any fees allowed and paid on any annual or partial settlement after notice is given as provided for in case of final settlements.

A business trust is an express trust created by a written declaration of trust whereby property is conveyed to one or more trustees, who hold and manage the same for the benefit and profit of such persons as may be or become the holders of transferable certificates evidencing the beneficial interest in the trust estate.

A business trust may be established by a declaration of trust, duly executed by one or more trustees, for any lawful purpose including, but not limited to, acquiring, managing, improving, leasing, dealing in, selling or otherwise alienating, mortgaging or otherwise incumbering real and personal property of all kinds and descriptions, including dealing in, purchasing, holding, selling and exchanging stocks, bonds, mortgages, deeds of trust and other securities of all kinds and descriptions; receiving the income, dividends, rents, profits and returns therefrom, and investing the same or distributing the same to the beneficial owners of the trust in accordance with the terms of the declaration of trust.

The trustees shall hold the legal title to all property at any time belonging to the business trust. They shall have control over such property as well as the control and management of the business and affairs of the business trust. Liability to third persons for any act, omission or obligation of a trustee of a business trust, when acting in such capacity, shall extend to the whole of the trust estate, or so much thereof as may be necessary to discharge such obligation, but no trustee shall be personally liable for any such act, omission or obligation. The trustees shall have such powers as to the investment of the trust estate as may be set out in the declaration of trust without regard to the type of investments to which trustees generally are restricted by the provisions of Article 6 of this chapter or otherwise.

The beneficial ownership in a business trust shall be evidenced by certificates issued by the trustees. These certificates shall be transferable in the same manner as stock certificates of a corporation are transferable. No assessment shall be made against the interest of any beneficial owner, and no beneficial owner shall be personally liable for any debts or liabilities incurred by the trustees or by the business trust.

The written declaration of trust may provide for the election of successor trustees in the event of the death, resignation and removal of a trustee and may provide for the amendment of said declaration of trust. The declaration of trust may also contain such other provisions regarding the operation and administration of the business trust as may be necessary or desirable.

The declaration of trust shall be recorded in the office of the judge of probate in the county in which its principal place of business is located, and a recording charge of $15.00 shall be paid therefor, which shall be in lieu of all other recording charges.

A business trust shall not be deemed invalid as violating the rule against perpetuities or the law against suspension of the powers of alienation. Such trust may continue for such time as may be necessary to accomplish the purposes for which it may be created, provided the declaration of trust contains a provision that such trust may be terminated at any time by action of the trustees or by the vote of a specified percentage in interest of the beneficial owners thereof as set forth in the declaration of trust.

A business trust may be sued for debts and other obligations incurred by the trustees in the performance of their duties under the declaration of trust and for any damages resulting from the negligence of such trustees, and its property shall be subject to attachment and execution in like manner as if it were a corporation.

The income of a business trust shall be taxed as property held in trust in accordance with the provisions of Section 40-18-25.

(a) Whenever a bank or trust company is duly authorized to, and is acting as a fiduciary, and has a nominee in whose name securities, including, without limitation, bonds, stocks, mortgages, securities or other evidences of title held either in its own right or as fiduciary, may be registered, it shall be lawful to register securities in the name of such nominee, without mention of the trust or other fiduciary relationship in the instrument evidencing such securities, or on the books of the corporation issuing the same; provided, that:

(1) The records of such corporate fiduciary shall at all times clearly show that such securities are held by the corporate fiduciary in the capacity of a fiduciary, and show the beneficial owners thereof, and all facts relating to its ownership, possession or holding thereof.

(2) The instrument evidencing said security shall at all times be held by the fiduciary in its immediate and exclusive possession.

(3) Such corporate fiduciary shall not be relieved of liability for the safe custody, control and proper distribution of such security by reason of the registration of same in the name of a nominee.

(b) If two or more fiduciaries are acting jointly in reference to any property, it shall be lawful by agreement to register the property in the name of the nominee of any one corporate fiduciary, or, in the event more than one corporate fiduciary is acting, it shall be lawful to register the securities in the name of the nominee of any one of said corporate fiduciaries or by agreement to record a proportionate part of said securities in the name of one or more nominees of a corporate fiduciary.

Any fiduciary, including those acting as executor, administrator, guardian, agent or trustee, owning corporate stock registered in the name of the fiduciary, as such, or in the name of its nominee, or in the name of another for the convenience of the fiduciary, or in the names of more than one fiduciary, whether the corporation issuing such stock is foreign or domestic, may, in addition to the voting rights now vested in such fiduciary, execute and deliver, or cause to be executed and delivered, a proxy or proxies to others for the voting of such corporate stock, and may waive notice of and give consent to any meeting of shareholders of any corporation, regular or special, or a meeting of property owners, or cause such to be done, and may authorize in writing any action which could be taken by shareholders in meeting assembled, where such consent is authorized by statute, certificate of incorporation or bylaws, or cause such written consent to be given, but subject always to the following:

(1) In granting any proxy, reasonable care must be exercised in deciding who shall act as proxy and whether or not instructions as to the voting of said stock shall be given to such proxy.

(2) If there are two or more fiduciaries acting, the proxy shall be executed by, and voting instructions shall be issued by, agreement of all fiduciaries or a majority of them if the stock is in the names of the fiduciaries; but, if the stock is in the name of a nominee, the proxy will be executed in the name of and by the nominee, but the fiduciary or fiduciaries will instruct the nominee as to the voting; provided, that no corporation whose shares are being voted shall be under any obligation to determine whether a nominee's actions comply with the instructions of any fiduciaries represented.

(3) In the event the manner or method of voting or the purposes to be accomplished are fixed by the instrument or instruments appointing said fiduciaries, the directions therein shall govern.

(4) It is recognized and understood that stock in the name of a nominee may be beneficially owned by more than one fiduciary, and the nominee may vote a portion of the stock in its name in one manner and another portion of the stock in its name in an entirely different or contrary manner according to the interests to be served by the fiduciaries whose shares are held by the nominee.

"Fiduciary funds," as used in this article, shall include any sums whatsoever which have come into the hands of such officer and of which he is not the absolute and unqualified owner, including witness fees and other fees or funds to which any person other than himself is entitled.

Every register, probate judge, sheriff, clerk and register shall prepare a report in writing showing the amount of all fiduciary funds in the hands of such official, designating the name of the owner and the case or the circumstances under which the same was received, which statement shall be verified.

The register and the clerk shall file the report with the judge of the court of which he is the clerk, or clerk and register, at the first session of said court after January 1 of each year.

The sheriff shall file, at the first session held after the first day of January of each court under whose processes he holds any money, the report required by this article.

The judge of such court shall carefully examine said report and order the same recorded by the clerk of the court in a well-bound book, kept for that purpose, which book shall be open to the inspection of the public.

The probate judge shall file such statement in his court within the first 10 days of January of each year and record the same in a book kept for that purpose, which book shall be open to the inspection of the public.

The judges of courts of record in this state, at the first session of their courts held after January 1, shall enforce the provisions of this article and, if such report is not filed within the first day of said court, shall issue a mandatory order requiring the filing of said report and, unless the same is filed within the time named in said order, shall punish officers so in default for contempt of court.

If at any time it should appear to the court, or be made known to the court, that any balance has been in the hands of any officer for a period of five years and the same remains unclaimed, it may make an order directing the same to be paid into the treasury of said county, and a separate account shall be kept of all such payments and so designated as to identify each transaction.

Any person entitled to any amount so paid into the treasury or any part thereof may within 10 years after such payment into the treasury recover the amount to which he may be entitled, without interest, by obtaining an order from the court under whose order the same was paid into the treasury. Such order may be made by the court on summary motion against the probate judge of the county after five days' notice unless the court for sufficient reasons continues the hearing to a further time.

(a) Where by the terms of a will or trust instrument a fiduciary may or must satisfy a pecuniary gift thereunder by distributing or allocating property in kind according to the value thereof other than the value on the date of distribution or allocation, the fiduciary, in satisfying such gift from the property available therefor, shall, unless the governing document expressly prohibits such a selection of property, select property, including cash, fairly representative of appreciation or depreciation in the value at the date or dates of distribution or allocation of all property then available for distribution or allocation in satisfaction of such gift.

(b) The enactment of this section is not intended to imply that the present law of this state, relating to selection of property by fiduciaries in the circumstances herein described, has been otherwise than as set forth in subsection (a) of this section.