GENERAL LAWS OF MASSACHUSETTS (source: www. mass.gov) CHAPTER 203. TRUSTS. CREATION OF TRUSTS. Chapter 203, Section 1. Trusts in realty; necessity of

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1 GENERAL LAWS OF MASSACHUSETTS (source: www. mass.gov) CHAPTER 203. TRUSTS. CREATION OF TRUSTS. Chapter 203, Section 1. Trusts in realty; necessity of writing. Chapter 203, Section 2. Record of trust; effect. Chapter 203, Section 3. Purchasers without notice. Chapter 203, Section 3A. Rule against perpetuity; exemption from operation of certain trusts. Chapter 203, Section 3B. Testamentary additions to trusts. APPOINTMENT AND REMOVAL OF TRUSTEES. Chapter 203, Section 4. Testamentary trustee; appointment. Chapter 203, Section 4A. Definitions applicable to secs. 4A and 4B. Chapter 203, Section 4B. Fiduciaries engaged in trust business required to furnish statement to customer disclosing certain information as condition precedent. Chapter 203, Section 5. Vacancies; filling. Chapter 203, Section 6. New trustee; posting of bond; effect; powers. Chapter 203, Section 7. Trustees; appointment by supreme judicial court; bonds. Chapter 203, Section 8. Inventory; dispensable in certain cases. Chapter 203, Section 9. Appraisal. Chapter 203, Section 10. Foreign trustees; necessity of letters in certain cases. Chapter 203, Section 11. Foreign trustee; notice. Chapter 203, Section 12. Removal of trustee; successor; appointment. Chapter 203, Section 13. Resignation of trustee. Chapter 203, Section 14. Fiduciary of former trustee. Chapter 203, Section 14A. Liabilities of trustees. Chapter 203, Section 14B. Securities held by fiduciaries; powers of fiduciaries; records and certification. AGENT OF NON-RESIDENT TRUSTEE. Chapter 203, Section 15. Agent of non-resident trustee; laws applicable. SALE OF TRUST ESTATE. Chapter 203, Section 16. Order of sale of trust estate; application; approval by court. Chapter 203, Section 17. Order of sale; persons not ascertained; notice; effect. Chapter 203, Section 17A. Foreign testamentary trustees; sale of realty. Chapter 203, Section 18. Property held by minors or persons not amenable to process; sale or conveyance. Chapter 203, Section 19. Trustee; power to sell personalty. Chapter 203, Section 20. Receipts of trustees; sufficiency. Chapter 203, Section 21. Corporations or associations; duty to see to execution of trusts to which shares are subject. Chapter 203, Section 21A. Trust income defined. Chapter 203, Section 21B. Bonds or other fixed obligations; powers of trustee. Chapter 203, Section 22. Expenses. MORTGAGE OF TRUST ESTATE. Chapter 203, Section 23. Mortgage of trust estate; court's authorization. Chapter 203, Section 24. Petition and decree; form. SALVAGE OPERATIONS OF TRUSTEES. Chapter 203, Section 24A. Salvage operations of trustees; cash proceeds; disposition. Chapter 203, Section 24B. Cash proceeds; apportionment.

2 DISTRIBUTION OF TRUST ESTATE. Chapter 203, Section 25. Orders to convert and distribute estates; consolidation of petitions to terminate charitable trusts; consolidation or termination and distribution of trust property. PURCHASE OF INSURANCE POLICIES OR ANNUITY CONTRACTS. Chapter 203, Section 25A. Purchase of insurance policies or annuity contracts; investment of funds. SETTLEMENT OF CERTAIN TRUST ESTATES HAVING ABSENTEE BENEFICIARIES. Chapter 203, Section 26. Definition of absentee. Chapter 203, Section 27. Transfer of trust estate; petition. Chapter 203, Section 28. Notice. Chapter 203, Section 29. Return day and service. Chapter 203, Section 30. Appearance; answer. Chapter 203, Section 31. Guardian ad litem; appointment. Chapter 203, Section 32. Findings of facts; power of court to order transfer or sale. Chapter 203, Section 33. New trustee; bond. Chapter 203, Section 34. New trustee; liability and powers. Chapter 203, Section 35. New trustee; limitation on actions. Chapter 203, Section 36. Trust estates; distribution to known beneficiaries; shares of absentees. Chapter 203, Section 37. Venue. Chapter 203, Section 38. Income of certain persons; power of court to decree. Chapter 203, Section 39. Sections applicable. TRUSTS FOR THE BENEFIT OF CREDITORS. Chapter 203, Section 40. Trusts for the benefit of creditors; validity of certain acts of trustees; insolvency proceedings. Chapter 203, Section 41. Validity of certain acts of trustees; requirements; fees; statement of trustee. Chapter 203, Section 42. Termination of trust. PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE II. DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES, GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS CHAPTER 203. TRUSTS CREATION OF TRUSTS Chapter 203: Section 1. Trusts in realty; necessity of writing Section 1. No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party creating or declaring the trust or by his attorney. PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS Chapter 203: Section 2. Record of trust; notice Section 2. If a trust concerning land is created or declared by such instrument, the recording of the instrument, or of a certificate conforming to the requirements of section 35 of chapter 184, in the registry of deeds or the registration office of the land court, in either case for the county or district

3 where the land lies, shall be equivalent to actual notice to every person claiming under a conveyance, attachment or execution thereafter made or levied. Chapter 203: Section 3. Purchasers without notice Section 3. No trust concerning land, whether implied by law or created or declared by the parties, shall defeat the title of a purchaser for a valuable consideration without notice of the trust, or prevent a creditor who has no notice of the trust from attaching the land or from taking it on execution as if no such trust existed. Chapter 203: Section 3A. Trusts for benefit of employees; rule against perpetuities Section 3A. A trust created by an employer as part of a stock bonus, pension, disability, death benefit or profit sharing plan for the benefit of some or all of his employees, to which contributions are made by the employer or employees, or both, for the purpose of distributing to the employees the earnings or the principal, or both earnings and principal, of the fund held in trust, may continue in perpetuity or for such time as may be necessary to accomplish the purpose for which it is created, and shall not be invalid as violating any rule of law against perpetuities or suspension of the power of alienation of the title to property. Chapter 203: Section 3B. Testamentary additions to trusts Section 3B. A devise or bequest, the validity of which is determinable by the laws of the commonwealth, may be made to the trustee or trustees of a trust established or to be established by the testator or by the testator and some other person or persons or by some other person or persons, including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, if the trust is identified in the will and the terms of the trust are set forth in a written instrument executed before or concurrently with the execution of the testator s will or set forth in the valid will of a person who has predeceased the testator, regardless of the existence, size or character of the corpus of the trust. The devise or bequest shall not be invalid because the trust is amendable or revocable, or both, or because the trust was amended after the execution of the will or after the death of the testator. Unless the will provides otherwise, the property so devised or bequeathed (a) shall not be deemed to be held under a testamentary trust of the testator, but shall become a part of the trust to which it is given and (b) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the death of the testator. A revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse. Chapter 203: Section 4. Testamentary trustee; appointment Section 4. If a testator has omitted in his will to appoint a trustee in this commonwealth and such appointment is necessary to carry into effect the provisions of the will, the probate court may, after notice to all persons interested, appoint a trustee who shall have the same powers, rights and duties and the same title to the estate as if originally appointed by the testator. Chapter 203: Section 4A. Definitions applicable to this section and Sec. 4B Section 4A. The following words as used in this section and section four B shall, unless the context otherwise requires, have the following meanings: Customer any resident of this commonwealth, who engages in trust business with, or enters into discussions or correspondence creating a trust business relationship with a fiduciary, or where such relationship arises from a revision or amendment of an existing trust relationship involving any

4 material change in matters subject to disclosure under this section and section four B except in such cases where the resulting fiduciary functions are to be performed without compensation. Trust business any activity conducted by an executor of a will or codicil, an administrator with the will annexed, an administrator of the estate of any person, a guardian, a conservator, or a trustee under a will or instrument creating a trust for the care and management of property, while he is acting in such a fiduciary capacity. Fiduciary as used in this section refers to any corporation, bank, trust company or individual who charges compensation for its or his services while acting in any of the capacities set forth in the paragraph defining Trust Business, and whose gross annual compensation from all such fiduciary services is in excess of twenty-five thousand dollars for each of the three next immediate preceding taxable years. Trust company any trust company incorporated in the commonwealth and any corporation or association which acts as a corporate fiduciary or trustee within the commonwealth. Chapter 203: Section 4B. Fiduciaries; disclosure statements; contents Section 4B. Prior to the execution by a customer of any document creating a fiduciary relationship, the fiduciary, if on notice of the customer s intent to execute such document, shall furnish to the customer a written or printed statement which is clear and understandable and applicable to the type of fiduciary business contemplated by the customer and which shall contain the following information: (a) That a fiduciary cannot act as executor unless there is a will or codicil nor as administrator of the will annexed unless there is a will, nor as trustee unless there is a will or instrument creating a trust for the care and management of property, nor as an executor or administrator of an estate, or a guardian, conservator or trustee under a will unless appointed by the court of jurisdiction. (b) That, unless the fiduciary is himself an attorney, the customer should obtain and pay for the services of an attorney at law of his own selection to represent his interests and to plan and draft any will, instrument creating a trust, or other trust or fiduciary document, including documents required by a probate court, and that the fiduciary may have such documents reviewed by counsel representing its interests. (c) That the interests of the customer, his estate and the beneficiaries under any will or instrument creating a trust may at times be in conflict with the interests of the named fiduciary or fiduciaries. (d) That the officers and employees of a trust company may not engage in the practice of law, which includes the preparation of documents described in clause (b), and may not appear for the customer or his estate before the courts; and that many persons in the employ of the trust company contribute to the management and servicing of fiduciary accounts, and that personnel of a trust company will change with the passage of time. (e) That if the customer desires to have a trust company act as guardian or conservator, a petition for appointment of a trust company must be prepared and presented to the probate court by an attorney at law, and that the trust company cannot act as guardian of the person but only of the estate. (f) That, with regard to charges and fees, the fiduciary shall furnish to the customer a statement of all charges, currently applicable, which such prospective fiduciary makes for the services to be performed in its capacity as such fiduciary, and that such charges may be subject to change in the future; a statement setting forth in reasonable detail what services, under conditions existing at the time, will be rendered for the fee described; a statement that legal services, whether performed by an independent attorney or performed by the fiduciary in his capacity as an attorney, are payable in addition to the compensation of the fiduciary; and a statement as to whether the existence of one or more cofiduciaries will increase the total compensation payable from the account. (g) That, with regard to investments, the fiduciary shall, if it is contemplated that any part of the customer s estate will be invested in any common or pooled fund operated by the fiduciary, furnish to

5 the customer a copy of the most recent audited published report of such fund, and if such is not available, a copy of the following information on such fund: the history and purpose of the fund; the investment policy and investments permitted; the management; provisions for payment of dividends; provisions for capital gains; provisions for purchasing participations; provisions for redeeming participations; compensation for management each year; certified audit and statement of assets; certified statement of fees and expenses charged against the fund; a complete list of investments; and if the funds are to be separately invested, a description of the fiduciary s facilities and procedures for selecting and supervising investments. In the case of one or more individuals serving with a trust company as co-trustees, the disclosures required by the preceding paragraphs may be made in a joint statement affirmed by each co-trustee. Chapter 203: Section 5. Vacancies; filling; court appointed trustee Section 5. If a trustee under a written instrument declines, resigns, dies or is removed before the objects of the trust are accomplished and no adequate provision for filling the vacancy is made therein the supreme judicial court, the superior court or the probate court shall, after notice to all persons interested, appoint a new trustee to act solely or jointly with the others as the case may be. Chapter 203: Section 6. New trustee; posting of bond; effect; powers Section 6. A trustee appointed under the preceding section, or appointed in the place of a former trustee in conformity with a written instrument creating a trust, shall, upon giving such bond as may be required, have the same powers, rights and duties and the same title to the estate, whether as sole or joint trustee, as if originally appointed; and the court may order any conveyances to be made by the former trustee or his representatives or by the other remaining trustees which it may find proper or convenient to vest the trust estate in the new trustee either solely or jointly with the others. Chapter 203: Section 7. Court appointed trustees; bonds Section 7. The bond required of a trustee appointed by the supreme judicial or superior court under section five shall be payable to the commonwealth, and shall otherwise be in such form as the court shall require. Such bond may be enforced in the name of the commonwealth by the attorney general, or by any person interested therein and duly authorized to take such action by the court where the bond is filed after notice to the attorney general. Any sums recovered shall be paid over or administered as the court directs. Chapter 203: Section 8. Successor trustees; inventory; bond conditions Section 8. If a trustee is appointed by the probate court as the successor of a prior trustee, the court may dispense with the making and return of an inventory if it appears to be unnecessary, and in such case the condition of the bond shall be altered accordingly. Chapter 203: Section 9. Appraisal Section 9. If an inventory is required to be returned by a trustee, the estate and effects shall be appraised in the manner provided by section six of chapter one hundred and ninety-five. Chapter 203: Section 10. Foreign trustees; necessity of letters Section 10. If a trustee who derives his appointment or authority from a court having no jurisdiction in the commonwealth holds land in the commonwealth in trust for persons resident therein, he shall, upon

6 petition to the probate court for the county where the land lies, and after notice, be required to take out letters of trust from said court; and upon his neglect or refusal so to do, the court shall declare such trust vacant, and shall appoint a new trustee, in whom the trust estate shall vest in like manner as if he had been originally appointed or authorized by said court. Chapter 203: Section 11. Foreign trustee; notice Section 11. The notice to the trustee required by the preceding section may be given by serving him with a copy of the petition, and of the citation thereon, fourteen days at least before the return day of such citation, or in such other manner as the court may order. Chapter 203: Section 12. Removal of trustee; successor; appointment Section 12. The supreme judicial court, the superior court or the probate court may, upon petition of a party beneficially interested in a trust under a written instrument, and after notice to the trustee and all persons interested, remove the trustee if it finds that such removal is for the interests of the beneficiaries of the trust or if he has become incapacitated by reason of mental illness or otherwise incapable or is unsuitable therefor. If the petition for removal contains a prayer therefor, the court may, upon such notice as it considers reasonable, appoint a successor to fill the vacancy caused by such removal, without the filing of a separate petition for that purpose. Chapter 203: Section 13. Resignation of trustee Section 13. A trustee may resign his trust if the court authorized to appoint the trustee finds it proper to allow such resignation. Chapter 203: Section 14. Fiduciary of former trustee Section 14. A person succeeding to a trust as executor or administrator of a former trustee shall not be required to accept such trust. Chapter 203: Section 14A. Liabilities of trustees Section 14A. Unless otherwise provided in the contract, a trustee shall not be personally liable on contracts properly entered into in his fiduciary capacity in the course of administration of the trust estate unless he failed to reveal his representative capacity and identify the trust estate in the contract. A trustee shall be personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if he was personally at fault. Claims based on contracts entered into by a trustee in his individual capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in his fiduciary capacity, whether or not the trustee was personally liable therefor. The question of liability as between the trust estate and the trustee individually may be determined in an accounting, surcharge, indemnification or other appropriate proceeding. Chapter 203: Section 14B. Securities held by fiduciaries; powers of fiduciaries; records and certification

7 Section 14B. (a) Unless expressly limited by the governing instrument, a fiduciary, as defined in paragraph (b), shall have the powers specified in paragraph (c) with respect to securities held by the fiduciary in a fiduciary capacity. This power shall be in addition to all other powers which such fiduciary shall have pursuant to applicable law or the governing instrument. (b) For purposes of this section, a fiduciary shall include an executor, administrator of an estate or administrator with the will annexed, trustee, guardian, conservator, or custodian pursuant to chapter two hundred and one A; provided, however, that said fiduciary may be permanent or temporary; and provided, further, that court appointment of said fiduciary is not required. (c) A fiduciary, acting directly or through an agent or custodian, shall, with respect to securities represented by certificates or uncertificated securities as described in clause (4), have the following powers: (1) to register, hold or deposit securities in a manner such that, without certification as to ownership attached, certificates representing securities of the same class of the same issuer are held in bulk, including, to the extent feasible, the merging of certificates of large denomination; (2) to register, hold or deposit securities in the name of a partnership or corporate nominee of the fiduciary or of the agent or custodian of the fiduciary, including, but not limited to, in the name of a nominee of a depository or clearing corporation described in clause (3); (3) to register, hold or deposit securities in a securities depository, or in a clearing corporation, as defined in section of chapter one hundred and six, in a manner such that ownership of, or other interests in, securities may be transferred by bookkeeping entry on the books of the depository or clearing corporation without physical delivery of certificates representing such securities; (4) to register, hold or deposit securities in the form of uncertificated securities, as defined in section of chapter one hundred and six; and (5) to register, hold or deposit with any federal reserve bank any securities the principal and interest of which the United States or any department, agency or instrumentality thereof has agreed to pay, or has guaranteed payment, in a manner such that ownership of, or other interests in, securities may be transferred by bookkeeping entry of such federal reserve bank without actual issue or physical delivery of certificates representing such securities. (d) A fiduciary registering, holding or depositing securities in any manner provided in paragraph (c) shall maintain at all times adequate records showing the ownership of such securities, and shall segregate the securities from such fiduciary s own assets. (e) The fiduciary shall on demand by any court or interested party certify in writing as to the securities registered, held or deposited by the fiduciary as of any date. Any court or any interested party may rely on such written certification by the fiduciary as proof of the fiduciary s ownership of the securities as of the date indicated. The fiduciary, in preparing and making such certification, may rely on a written certification with respect to the securities provided by any agent or custodian holding, directly or indirectly, the securities for the account of the fiduciary and on a written certification of the issuer sent to the fiduciary or the agent or custodian of the fiduciary as the registered owner of uncertificated securities as proof of ownership of such uncertificated securities. The fiduciary shall hold harmless any such interested party for loss resulting from reliance upon such certification issued by the fiduciary. For purposes of this paragraph, an interested party shall mean a co-fiduciary or beneficiary or the attorney, legal representative or guardian ad litem of any co-fiduciary or beneficiary. Chapter 203: Section 15. Laws applicable Section 15. Sections eight, nine and ten of chapter one hundred and ninety-five shall apply to nonresident trustees, except that said writing shall be filed in the clerk s office of the court appointing him if appointed by a court other than the probate court.

8 Chapter 203: Section 16. Order of sale; application; approval by court Section 16. If the sale and conveyance, transfer or exchange of any real or personal property held in trust appears to be necessary or expedient, the supreme judicial court, the superior court or the probate court may, upon petition of a trustee or other person interested, after notice, order such sale and conveyance, transfer or exchange to be made, and the investment, reinvestment and application of the proceeds of such sale in such manner as will best effect the objects of the trust. In the case of a petition to sell real estate, the court, if satisfied that such action will not be prejudicial to the interests of the estate, may authorize the petitioner to become the purchaser of such real estate, either at public or private sale. In the case of personal property the probate court may make such order with or without notice and without the appointment of a guardian ad litem or next friend as provided in the following section. The fact that the trustee has the necessary authority under the terms of the instrument creating the trust or by law to make such sale and conveyance, transfer or exchange without order of the court shall not bar proceedings under this section, but nothing herein contained shall be deemed to require a license where such authority exists. Chapter 203: Section 17. Order of sale; persons not ascertained; notice; effect Section 17. If the court, upon proceedings under the preceding section, finds that said estate may be held in trust for, or that a remainder or contingent interest therein may be limited over to, persons not ascertained or not in being, notice shall be given in such manner as the court may order to all persons who are or may become interested in such estate, and to all persons whose issue, not then in being, may become so interested; and the court shall of its own motion in every such case appoint a suitable person to appear and act therein as the next friend of all persons not ascertained or not in being, who are or may become interested in such estate, and the provisions of sections thirty-four and thirty-five of chapter two hundred and one consistent herewith shall apply to such appointment. A conveyance or transfer made after such notice and proceeding shall be conclusive upon all persons for whom such guardian ad litem or next friend was appointed. Chapter 203: Section 17A. Foreign testamentary trustees; sale of realty Section 17A. A trustee duly qualified and acting in another state or country under the will of a person who was not at the time of his death a resident of this commonwealth and upon whose estate letters testamentary or of administration or of trusteeship have not been granted in this commonwealth, may file an authenticated copy of such will and of the probate thereof, together with an authenticated copy of the record of appointment or qualification of such trustee and of his bond, if any, in the probate court for any county in which there is real estate of his deceased testator, and such trustee, after such notice to the commissioner of revenue, creditors and all other persons interested as the court orders, may be licensed to sell any real estate in the commonwealth, which is subject to such trust, or an undivided interest therein, in such manner and upon such notice as the court orders. But such license shall not be granted unless the court finds that one year has expired since the death of the deceased, that such trustee will be liable to account for the proceeds of the sale in the state or country where he was appointed or where said trust is in course of administration, that no beneficiaries under the trust reside in the commonwealth and that no creditor or other person interested will be prejudiced thereby. The net proceeds of such sale, after deducting the expenses thereof, may be taken by said foreign trustee out of the commonwealth to be accounted for in the court in which he received his appointment or to which

9 he is bound to account. The provisions of section seventeen shall apply in case of proceedings under this section. Chapter 203: Section 18. Property held by minors or persons not amenable to process; sale or conveyance Section 18. If a person who is seized or possessed of real or personal property or of an interest therein upon a trust, express or implied, is a minor, incapacitated by reason of mental illness, out of the commonwealth or not amenable to the process of any court therein having equity powers, and if in the opinion of the supreme judicial court, the superior court or the probate court a sale should be made of such property or of an interest therein, or a conveyance or transfer should be made thereof in order to carry into effect the objects of the trust, the court may order such sale, conveyance or transfer made and may appoint a suitable person in the place of such trustee to sell, convey or transfer the same in such manner as it may require. If a person so seized or possessed of an estate or entitled thereto upon a trust is within the jurisdiction of the court, he or his guardian may be ordered to make such conveyances as the court orders. Chapter 203: Section 19. Trustee; power to sell personalty Section 19. When personal property is subject to a trust contained in a written instrument, the trustee or trustees may, unless there is some provision therein to the contrary or unless it would be inconsistent with the purposes of the trust, change the investment of such property from time to time and for that purpose make sales and transfers thereof. Chapter 203: Section 20. Receipts of trustees; sufficiency Section 20. The receipt of a trustee, or of any one or more of several trustees, for any money, securities or other personal property or effects payable, transferable or deliverable to him or them under any trust or power shall be a sufficient discharge therefor to the person paying, transferring or delivering it, and no such person shall be bound to see to the application thereof. Chapter 203: Section 21. Corporations or associations; shares subject to trust; duties; knowledge of breach of trust Section 21. A company or corporation, public or private, or quasi corporation, or unincorporated association, or the managers of any trust, or any transfer agent, registrar or other agent of such company, corporation, quasi corporation, unincorporated association or managers, shall not be bound to see to the execution of any trust, express, implied or constructive, to which any of its shares, bonds or securities are subject, or to ascertain or inquire whether the trust authorizes a transfer thereof by the holder, but this section shall not be a protection against liability for participating with actual knowledge in a breach of trust, and the fact that the trust is of record shall not constitute such actual knowledge. Chapter 203: Section 21B. Bonds or other fixed obligations; powers of trustee [ Text of section effective until January 1, Repealed by 2005, 129, Sec. 2 applicable as provided by 2005, 129, Sec. 6. See 2005, 129, Sec. 5.] Section 21B. Unless there is a specific provision to the contrary in the will or trust instrument, when any part of the principal of a trust consists of bonds or other similar fixed obligations purchased by the trustee at a premium, the trustee shall not be required to deduct from income and transfer to principal

10 any amortization of the amount paid as a premium if the amount of such premium does not exceed six per cent of the par or maturity value of such bonds or other similar fixed obligations and no trustee shall in any event be required to amortize bond premiums if the will or trust confers upon such trustee a power to refrain from amortizing bond premiums or a power to make determinations as between income and principal. Chapter 203: Section 22. Expenses [ Text of section effective until January 1, Repealed by 2005, 129, Sec. 2 applicable as provided by 2005, 129, Sec. 6. See 2005, 129, Sec. 5.] Section 22. Unless otherwise expressly provided by the trust instrument, the costs and expenses incurred in proceedings for appointment or removal of trustees, trustees' and brokers' commissions and other expenses properly incurred and paid by trustees for or in connection with the sale, exchange or purchase of property shall be charged to principal. Commissions and expenses paid by trustees for negotiating or effecting leases for terms longer than five years shall be charged to principal in the first instance, and a part thereof proportionate to the number of years of the term shall be repaid from income to principal in each year while the lease and the trust co-exist. Chapter 203: Section 23. Court s authorization Section 23. The court having jurisdiction of a trust created by a written instrument may, upon petition and after notice to all persons interested, if upon hearing it appears to be for the benefit of the trust estate, authorize trustees to mortgage any real estate held by them in trust for the purpose of paying assessments upon the trust estate for betterments or for the expense of repairs and improvements on such estate made necessary by such betterments or by the lawful taking of such estate or of a part thereof by public authority; for the purpose of paying the expense of erecting, altering, completing, repairing or improving a building on such estate; or for the purpose of paying the expense of other improvements of a permanent nature made or to be made on such estate; or for the purpose of paying an existing lien or mortgage on such estate or on a part thereof; or it may authorize such trustees to make an agreement for the extension or renewal of such existing mortgage. Chapter 203: Section 24. Petition and decree; form Section 24. Such petition shall set forth a description of the estate to be mortgaged, the amount of money necessary to be raised and the purposes for which such money is required, and, if made to a probate court, shall be made in the county where trustees were appointed, if the trust was created by will, or, if it was not so created, in the county where the estate, or a part thereof, which is the subject of the petition is situated. The decree of the court upon such petition shall fix the amount for which the mortgage may be given and the rate of interest which may be paid thereon, and may order the interest and the whole or any part of the money secured by the mortgage to be paid from time to time from the income of the property mortgaged. Chapter 203: Section 24A. Cash proceeds; disposition [ Text of section effective until January 1, Repealed by 2005, 129, Sec. 3 applicable as provided by 2005, 129, Sec. 6. See 2005, 129, Sec. 5.] Section 24A. Unless otherwise expressly provided by the will or other instrument by which a trust is created, upon the sale of real estate acquired by a trustee under a will or other instrument as a result of a foreclosure or a deed in lieu of foreclosure of any mortgage held by the trust, for a consideration consisting in part or in whole of a note or other obligation secured by a mortgage thereon or on a part

11 thereof, the cash proceeds of such sale, plus the net cash receipts of the trust from the property since default, shall first be applied to the payment of all reasonable expenses and charges involved in acquiring, managing, maintaining, caring for and selling the property. Any balance of cash remaining may in the discretion of the trustee forthwith be apportioned between income and principal as though such cash constituted the entire proceeds of the sale. Chapter 203: Section 24B. Cash proceeds; apportionment [ Text of section effective until January 1, Repealed by 2005, 129, Sec. 3 applicable as provided by 2005, 129, Sec. 6. See 2005, 129, Sec. 5.] Section 24B. Cash payments, whether of principal or interest, on a note or other obligation of the type referred to in section twenty-four A, received subsequent to the time when such note or obligation was accepted as the, or part of the, consideration shall, if the total net cash receipts referred to in said section twenty-four A were insufficient to pay the expenses and charges therein referred to, be first applied in reduction of such expenses and charges until cancelled. Subject to such provision, all such receipts, whether of principal or interest, may in the discretion of the trustee be apportioned between capital and income at such times as the trustee deems advisable. If any apportionment is made under said section twenty-four A, all subsequent apportionments between income and principal shall be made in the same ratio, unless subsequent conditions or other circumstances render a different ratio of apportionment more equitable. The trustee, after the expenses and charges referred to in said section twenty-four A have been paid, may treat as income all or any part of the interest received on such note. A trustee who makes, in good faith, an apportionment provided for in this section or said section twenty-four A shall not be charged with personal liability for such acts. Nothing in this section or section twenty-four A shall prevent a trustee from seeking the instruction of the proper court if he deems it advisable. The term "mortgage'' as used in said section twenty-four A shall include a mortgage participation or a mortgage certificate or any other form of interest in a single entire mortgage, but shall not include a mortgage participation or a mortgage certificate or any other form of interest in a group of mortgages. Chapter 203: Section 25. Orders to convert and distribute estates; consolidation of petitions to terminate charitable trusts; consolidation or termination and distribution of trust property Section 25. If under a written instrument a trust estate is to be distributed in whole or in part, the probate court, upon petition of a person interested, after such notice as it may direct, may order the trustee to convert said estate, both real and personal, or either, into cash and distribute it among such persons as under such instrument are entitled thereto. In the event that two or more petitions for the termination of charitable trusts are brought in the same division of the probate court, the court may, in order to reduce the expense of such petitions, consolidate such cases and hear them concurrently. The court having jurisdiction of a trust under a will or other instrument, upon petition and after notice to the beneficiaries and other interested parties, may order either the consolidation or termination and distribution of the trust property. Such order may be issued regardless of any spendthrift or other such similar protective provision, if the court finds that the costs of administration thereof are such that the continuance of the trust, or the establishment of the trust if it is to be established upon distribution from an estate, would be uneconomical or would defeat or substantially impair the purposes of the trust. In ordering either the consolidation or termination and distribution of such trust the court shall consolidate the trust with other trusts where such consolidation is in the best interests of the trust beneficiaries, where consolidation will result in a more economical administration of the trust and where

12 consolidation would not substantially impair the purposes of the trust. If consolidation of the trust is impractical in light of the foregoing considerations, the court may order the termination and distribution of the trust. In addition, the court may make such other and further orders as it deems proper or necessary to protect the interests of the beneficiaries and the trustee. Such petition may be filed by the trustee, by any person interested in such trust or by the personal representative of a decedent s estate. The order shall specify the appropriate share of each beneficiary who is to share in the proceeds of the trust, taking into account the interests of income beneficiaries and remaindermen so as to conform as nearly as possible to the intention of the settlor or testator, but a trust qualifying for the marital deduction for tax purposes shall be distributed only to the surviving spouse of the decedent. The order may direct that the interest of a minor beneficiary, or any portion thereof, be distributed to a custodian pursuant to the Uniform Transfer to Minors Act or as otherwise provided by law. In the event that two or more petitions for the termination of such trusts are brought in the same division of the probate court, the court may, in order to reduce the expense of such petitions, consolidate such cases and hear them concurrently. Nothing in the preceding paragraphs shall limit the right of a trustee acting alone to terminate a trust without an order of the court in accordance with applicable provisions of the governing instrument. Chapter 203: Section 25A. Investment of funds Section 25A. The trustee under a will or other instrument may, if the trust does not otherwise provide, invest the income or principal of the trust fund in policies of life or endowment insurance or annuity contracts, issued by a life insurance company duly authorized to transact business in the commonwealth pursuant to chapter one hundred and seventy-five, on the life of any beneficiary of the trust or on the life of any person in whose life such beneficiary has an insurable interest. Chapter 203: Section 26. Definition of absentee Section 26. In sections twenty-seven to thirty-nine, inclusive, the word absentee shall mean a beneficiary who has disappeared, absconded or is absent from the commonwealth, or has disappeared or absconded from the place without the commonwealth, where he was last known to be, and it is not known by the petitioner where he is, and the date of such disappearance or absconding and of the time when it was last known by the petitioner where he was and when he was last heard from or heard of shall have been more than fourteen years before the filing of the petitions provided for in said sections twenty-seven to thirty-nine, inclusive. Chapter 203: Section 27. Transfer of trust estate; petition Section 27. If a trustee appointed under a will by a probate court of the commonwealth holds trust estate the final disposition of which depends upon the death of an absentee, such trustee, or any person who would be interested in the trust estate or any portion thereof, if such absentee were dead, may file a petition under oath in the probate court for the county where such trustee was appointed, stating to the best of his knowledge and belief the name, age, last known occupation, last known residence and address of such absentee, and the last place where he was known to be, the date and circumstances of his disappearance or absconding, and the names and residences of his wife, children and issue at the time of his disappearance or since, and of those who would have been his heirs at law and next of kin if he had died at the time of filing the petition, and the names and residence of the family of such absentee, and of other persons of whom inquiry may be made, and containing a schedule or statement of such trust estate, real and personal, so far as known, and the names and residences, so far as known, of the persons who would be entitled to the trust estate if said absentee had died intestate within the commonwealth on the day fourteen years after the date of his disappearance. Such petition shall contain as parties the name of such trustee and of such absentee and the names and residences, so far as known

13 to the petitioner, of the persons who would be entitled to the trust estate if such absentee had died intestate within the commonwealth on said day, and of the persons who under his will or otherwise would be entitled to the trust estate if he had then died, and the description of the class of persons, if their names or existence are unknown, who might be entitled as aforesaid, and all persons whom it may concern, excepting however any of such persons or parties who are petitioners, and shall pray that the trust estate, both principal and any accumulations from unpaid income or otherwise, shall be transferred to the persons as trustees who would be entitled to such trust estate if such absentee had died within the commonwealth on the day fourteen years after the date of his disappearance, and in the proportions to which each would be entitled. Chapter 203: Section 28. Notice Section 28. If the petition is brought by such trustee, the court shall issue a notice as hereinafter provided. If brought by a person other than the trustee, a subpoena shall be served upon the trustee as in equity, and upon proof of the existence of such trust estate as aforesaid by answer of such trustee or otherwise, which answer shall be filed within one month after the return day of such subpoena and shall set forth a schedule or statement of such trust estate, the court shall issue a notice as hereinafter provided. The notice issued by the court shall recite the substance of the petition, and shall be addressed to such absentee and to all persons who claim an interest in said trust estate, and to all whom it may concern, and to all the persons and classes of persons named as respondents in the petition, citing them to appear at a time and place named and show cause why said estate should not be held and disposed of under sections twenty-six to thirty-nine, inclusive. Chapter 203: Section 29. Return day and service Section 29. The return day of said notice shall be not less than six months after the date of such order. The court shall order a copy of said notice to be served on all of said parties who may reside within the commonwealth, within sixty days after the date of such notice. Said notice shall be published in one or more newspapers within the commonwealth, and also, if within the United States, in one or more newspapers, if any such there be, in the town, or in the county, in case there is no newspaper published in such town, where the absentee last resided or was known to have last been. Such publication shall be at least once in each of three successive weeks, within thirty days after the date of the order in such newspaper or newspapers published within the commonwealth, and within sixty days after the date of the order in such newspaper or newspapers published without the commonwealth, and a copy of the notice shall be mailed within thirty days after the date of the order to the last known address of such absentee. The court may order further notice to be given within or without the commonwealth. Proof of such service shall be made by affidavit, or in such other manner as the court may order. Chapter 203: Section 30. Appearance; answer Section 30. The respondents and the absentee and any person claiming an interest in the estate may appear and show cause why the prayer of the petition should not be granted, and may appear and answer on or before the return day or within such further time as the court may allow. By the description in the notice, To all whom it may concern, all the world are made parties defendant and shall be concluded by the order or decree. Chapter 203: Section 31. Guardian ad litem; appointment

14 Section 31. The court may appoint a suitable person to appear and act in said proceedings as guardian ad litem for minors and for all persons and classes or descriptions of persons under disability or not ascertained or unknown or not in being or out of the commonwealth, and who under the provisions of the will in regard to said trust estate or otherwise may be or may become interested in said trust estate, and the court shall appoint a suitable person to appear and act therein as guardian ad litem of said absentee. An order or decree in such proceedings, made after such appointment, shall be conclusive upon all persons for whom such guardian ad litem was appointed. Chapter 203: Section 32. Findings of facts; power of court to order transfer or sale Section 32. The court shall find the date of the disappearance or absconding of the absentee, and any other material facts. If the court finds that such disappearance has been continuous for more than fourteen years next preceding the filing of the petition, that upon the evidence presented the absentee has not been heard from or known of within such fourteen years, and that the facts found warrant a presumption of death, the court shall order the trust estate transferred to the persons as trustees to whom, and at the time or times and in the shares and proportions in which, it would, under the provisions of the trust of said property as set forth in the will, be distributed if said absentee had died within the commonwealth on the day fourteen years after the date of the disappearance or absconding, as found and recorded by the court. And by such order all the right, title and interest of said absentee in said trust estate and of all other persons, except those to whom as trustees said trust estate is to be turned over and paid in pursuance of said order, shall, as against the said trustee appointed under the will by the probate court, be barred, and no action, suit or petition in any form shall be begun by, or for the benefit of, such absentee or such other persons against the said trustee for or on account of said trust estate or its proceeds; and the court may authorize the trustee to sell at public or private sale the said trust estate or any part thereof and to convert it into money in order to make transfer thereof as aforesaid. Chapter 203: Section 33. New trustee; bond Section 33. Upon the transfer in pursuance of such decree to each of such new trustees of his portion of the trust estate or fund, he shall give bond to be filed in the court in said case, in such sum and with or without sureties as the court may order, to the judge of said court and his successors in office and with condition substantially that he will pay and deliver to such absentee, if living, or to any persons claiming under him, as his heirs at law or as named in his will as recipients of such trust estate under the exercise of any power of appointment by the said absentee or persons otherwise claiming the fund, the fund which such trustee has received, with the accumulations thereof, if any, less reasonable disbursements and compensation, if in the suit on said bond such absentee or other person shall be found to be lawfully entitled to said trust estate or fund. Such bond may be put in suit by such absentee or other persons for his or their own benefit. In every action on such bond the writ shall be endorsed by the persons for whose benefit or at whose request the action is brought or by their attorney, and the endorsers shall be liable for the costs of the suit, and execution therefor shall be issued against them and not against the judge of said court. Chapter 203: Section 34. New trustee; liability and powers Section 34. Such new trustee shall be liable only for gross negligence. He may in his discretion invest and reinvest the trust fund or estate delivered to him and sell real and personal estate at public auction or private sale and execute instruments necessary to transfer the title thereto. If such new trustee dies before the expiration of the six years named in the following section, his estate shall be liable on the bond required of such trustee.

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