Missouri Senate

Senate Amendment

TRUSTS (Sections 456.006, 456.4-414)

Under this act, a trust which is a health savings account shall be deemed to have been established on the day when the beneficiary of the trust is an eligible individual in the calendar year in which the trust is created.

This provision is identical to a provision contained in HB 1650 (2018) and SCS/HCS/HB 427 (2017) and substantially similar to a provision contained in SCS/SB 942 (2018).

Under current law, a trustee of a trust consisting of property having a total value of less than $100,000 may terminate the trust if the trustee determines that the value of the trust property is insufficient to justify the cost of the administration. This act increases the required value of the trust property to less than $250,000 before the trustee can terminate the trust.

This provision is identical to provisions contained in SCS/SB 942 (2018), HB 1650 (2018), SCS/HCB 1 (2017), SCS/HCS/HB 427 (2017), and the truly agreed to and finally passed version of SB 128 (2017).

POWERS OF APPOINTMENT (Sections 456.985, 456.1035, 456.1080)

Under current law, there are exceptions to the general rule that the terms of a document creating or exercising a power of appointment shall take precedence over statutes governing powers of appointment.

This act adds to this list of exceptions and provides that a power of appointment can only be created when a legally valid document manifests the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.

Additionally, a powerholder of a nongeneral power may create a nongeneral power in a permissible appointee.

These provisions are identical to provisions contained in the perfected version of SCS/SBs 946 & 947 (2018).

MISSOURI FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (Sections 472.400-472.490)

This act establishes the Missouri Fiduciary Access to Digital Assets Act, which allows fiduciaries to access electronic records or "digital assets" of an account holder or "user".

A user may allow or prohibit the disclosure of his or her digital assets to a fiduciary in a will, trust, or other record. The user may also use an online tool to direct the custodian of the digital assets to disclose some or all of the digital assets. In certain situations, the direction of the user to the custodian using the online tool can override a conflicting direction contained in the user's will, trust, or other record.

The user's direction regarding the disclosure of the digital assets under an online tool or other record overrides a contrary provision in a terms-of-service agreement that does not require the user to take affirmative action regarding the agreement. A fiduciary's access to digital assets may be modified or eliminated by a user, federal law, or a terms-of-service agreement if the user has not provided direction through the use of an online tool or will, trust, or other record.

A custodian has the discretion to grant to a fiduciary full access to the user's account, partial access, or provide a copy of the digital assets requested. The custodian may charge a fee for disclosure, but may not disclose a digital asset that the user has deleted.

A custodian shall disclose to the fiduciary the content of an electronic communication sent or received by the user, a catalogue of electronic communications, and digital assets of the user if the fiduciary provides certain documentation as specified in the act. If the fiduciary is an agent acting under a power of attorney, then the power of attorney must expressly grant the agent authority over the content of electronic communications sent or received by the user for the custodian to disclose the digital assets.

A custodian may disclose to a conservator the user's catalogue of electronic communications and any digital assets if the conservator is given authority by the court and provides the court order to the custodian. Additionally, a conservator may request the suspension or termination of a user's account for good cause.

A fiduciary may terminate the user's account in writing and such request must be accompanied with certain documents as provided in the act.

A custodian has sixty days to comply with a fiduciary's request for disclosure or account termination. If the custodian does not comply with the request, then the fiduciary may apply to the court to order compliance.

These provisions are substantially similar to the perfected version of SB 909 (2018) and SCS/SB 129 (2017).

GIFTS GIVEN IN FRAUD OF MARITAL RIGHTS (Section 474.150)

Under current law, a gift given by a person in fraud of marital rights may be recovered by the surviving spouse and applied to the payment of the spouse's share of the estate. This act specifies that the surviving spouse may recover the gift made in fraud of the marital rights when the decedent and the surviving spouse were married at the time the gift was made.

This provision is identical to a provision contained in the perfected version of SCS/SBs 946 & 947 (2018).

MISSOURI COMMERCIAL RECEIVERSHIP ACT (515.575, 515.635)

Under current law, an order appointing a general receiver shall stay any act to collect, assess, or recover a claim against the debtor. This act provides that the stay shall automatically expire sixty days after the appointment. A stay on an act to obtain possession of estate property from the receiver shall not automatically expire after sixty days.

If there are "insufficient" rather than "sufficient" funds in the estate, which is in receivership, to pay all interests, then interests shall be paid proportionately to each member of the class.

This provision is identical to a provision in the truly agreed to and finally passed version of SB 128 (2017) and HCB 8 (2017).

JESSI JAMES

SA - ADDS PROVISIONS REGARDING TRUST PROTECTORS AND THE LIABILITY OF A TRUSTEE WHEN ACTING UNDER THE DIRECTIONS OF ANOTHER AS PROVIDED IN THE TRUST