Ark. Code § 28-69-304

Current with legislation from 2024 Fiscal and Special Sessions.

Section 28-69-304 - Powers which may be incorporated

Without diminution or restriction of the powers vested in him or her by law, or elsewhere in this instrument, and subject to all other provisions of this instrument, the fiduciary, without the necessity of procuring any judicial authorization therefor, or approval thereof, shall be vested with, and in the application of his or her best judgment and discretion in behalf of the beneficiaries of this instrument shall be authorized to exercise, the powers hereunder specifically enumerated:

(1) In behalf of my estate to join my spouse, if living, or the personal representative of the estate of my spouse, if deceased, in the execution and filing of a joint income tax return to the United States, or to the State of Arkansas, or any other governmental taxing authority or a joint gift tax return, if and when a joint return is authorized by law, if the fiduciary, in the exercise of his or her best judgment, believes the action to be for the best interests of my estate, or will result in a benefit to my spouse or the estate of my spouse exceeding in amount any monetary loss to my estate which may be caused thereby;

(2) To continue, to the extent and so long as in the exercise of the fiduciary's best judgment it is advisable and for the best interests of my estate so to do, the operation or participation in the operation of any farming, manufacturing, mercantile, and other business activity or enterprise in which at the time of my death I am engaged, either alone or in unincorporated association with others;

(3) On behalf of my estate, to perform any and all valid executory contracts to which, at the time of my death, I am a party, and which at the time of my death have not been fully performed by me, and to discharge all obligations of my estate arising under or by reason of such contracts;

(4) Pending the administration of my estate, to permit any beneficiary or beneficiaries of this will to have the use, possession, and enjoyment, without charge made therefor, and without the fiduciary's thereby relinquishing control thereof, of any real property or tangible personal property of my estate which, upon completion of the administration of my estate, will be distributable to the beneficiary or beneficiaries, when, if, and to the extent that the action will not adversely affect the rights and interests of any creditor of my estate, and in the judgment of the fiduciary it is appropriate that the beneficiary or beneficiaries have the use and enjoyment of the property, notwithstanding that it may be subjected to depreciation in value by reason of such use. The exercise of this power will not constitute a distribution of the property with respect to which it is exercised, and, whether or not exercised, neither the power nor the exercise thereof shall be deemed a constructive or actual distribution of the property to which it relates;

(5) During the fiduciary's administration of the estate and subject to all the other provisions of this instrument, to receive and receipt for all of the assets of the estate, and to have exclusive possession and control thereof;

(6) By public or private sale or sales, and for such consideration, on such terms and subject to such conditions, if any, as in the judgment of the fiduciary are for the best interests of the estate and the beneficiaries thereof, to sell, assign, transfer, convey, or exchange any real or personal property of the estate, or the estate's undivided interest in the property, or any specific part of or interest therein, including, but not limited to, standing timber, rock, gravel, sand, growing crops, oil, gas, and other minerals or mineral rights or interests, and to grant easements on real property of the estate, and to participate in the partition of real or personal property in which the estate has an undivided interest, and to accomplish any such transactions by contracts, indorsements, assignments, bills of sale, deeds, or other appropriate written instruments executed and delivered by the fiduciary in behalf of the estate, and to acknowledge the execution of the instruments in the manner provided by law for the acknowledgment of the execution of deeds when the acknowledgments are required or appropriate;

(7) For such consideration, on such terms, and subject to such conditions, if any, as in the judgment of the fiduciary are for the best interests of the estate and the beneficiaries thereof, to lease, for terms which may exceed the duration of the estate, any real or tangible personal property of the estate, or any specific parts thereof or interests therein, including, but not limited to, oil, gas, and other mineral leases, and to accomplish the leases by appropriate written instruments executed and delivered by the fiduciary in behalf of the estate, and to acknowledge the execution of the instruments in the manner provided by law for the acknowledgment of the execution of deeds when the acknowledgments are required or appropriate;

(8) In behalf of the estate, to:

(A) Borrow money;

(B) Evidence the loans by promissory notes or other evidences of indebtedness signed by the fiduciary in his or her fiduciary capacity, to be binding upon the assets of the estate but not upon the fiduciary in his or her individual capacity;

(C) Secure loans by assigning or pledging personal property of the estate, or by mortgages or deeds of trust or other appropriate instruments imposing liens upon real property or tangible personal property of the estate; and

(D) Repay the loans, including principal and interest due thereon;

(9) In behalf of the estate, to borrow money from the fiduciary in his or her individual capacity and to secure the loans in the same manner as though they were made by a third person;

(10) To enter into contracts binding upon the estate, but not upon the fiduciary in his or her individual capacity, which are reasonably incident to the administration of the estate, and which the fiduciary in the exercise of his or her best judgment believes to be for the best interests of the estate;

(11) To settle, by compromise or otherwise, claims or demands against the estate, or held in behalf of the estate;

(12) To release and satisfy of record, in whole or in part, and to enter of record credits upon, any mortgage or other lien constituting an asset of the estate;

(13) To abandon and charge off as worthless, in whole or in part, claims or demands held by or in behalf of the estate which, in the judgment of the fiduciary, are in whole or in part uncollectible;

(14) To pay taxes and excises lawfully chargeable against the assets of the estate which are in the possession or under the control of the fiduciary, including, but not limited to, ad valorem taxes upon real and personal property of the estate which became due and payable prior to the property's coming into the hands of the fiduciary, or which become due and payable while the property remains in his or her possession or under his or her control, excluding, however, income taxes payable by distributees, assessed with respect to income which has been distributed by the fiduciary pursuant to the provisions of this instrument;

(15) To repair and maintain in good condition real and tangible personal property of the estate so long as the property remains in the possession or under the control of the fiduciary;

(16) To invest liquid assets of the estate, and from time to time exchange or liquidate and reinvest the assets, pending distribution thereof, if and when such investments in the judgment of the fiduciary will not impede or delay distribution thereof pursuant to the provisions of this instrument or as otherwise by law required, and in the judgment of the fiduciary are advisable and for the best interests of the estate and the beneficiaries. In making investments the fiduciary shall be guided by the "prudent investor rule" as authorized and defined in § 28-71-105, and the investments thus authorized shall be understood to include, but not to be limited to, loans secured by mortgages, or liens otherwise imposed, upon real or personal property;

(17) Subject to the making and keeping of appropriate records with respect thereto, which will at all times clearly identify the equitable rights and interests of the estate therein, to invest funds of the estate in undivided interests in negotiable or nonnegotiable securities, or other assets, the remaining undivided interests in which are held by the fiduciary in a fiduciary capacity for the use and benefit of other beneficiaries;

(18) To retain investments which initially come into the hands of the fiduciary among the assets of the estate, without liability for loss or depreciation or diminution in value resulting from the retention, so long as in the judgment of the fiduciary it is not clearly for the best interests of the estate, and the distributees thereof, that the investments be liquidated, although the investments may not be productive of income or otherwise may not be such as the fiduciary would be authorized to make;

(19) At any time and from time to time to keep all or any portion of the estate in liquid form, uninvested, for such time as the fiduciary may deem advisable, without liability for any loss of income occasioned by so doing;

(20) To deposit funds of the trust in one (1) or more accounts carried by the fiduciary, in a clearly specified fiduciary capacity, in any one (1) or more banks and trust companies whose deposits are insured under the provisions of the Federal Deposit Insurance Act as now constituted or as the same may be hereafter amended, and if the fiduciary is itself a bank or a trust company, and is otherwise qualified, he or she may serve as the depository;

(21) To deposit for safekeeping with any bank or trust company, including the fiduciary himself or herself if he or she is a bank or trust company, any negotiable or nonnegotiable securities or other documents constituting assets or records of the estate;

(22) To bring and prosecute or to defend actions at law or in equity for the protection of the assets or interests of the estate or for the protection or enforcement of the provisions of this instrument;

(23) To employ attorneys, accountants, or other persons whose services may be necessary or advisable, in the judgment of the fiduciary, to advise or assist him or her in the discharge of his or her duties, or in the conduct of any business constituting an asset of the estate, or in the management, maintenance, improvement, preservation, or protection of any property of the estate, or otherwise in the exercise of any powers vested in the fiduciary;

(24) To procure and pay premiums on policies of insurance to protect the estate, or any of the assets thereof, against liability for personal injuries or property damage, or against loss or damage by reason of fire, windstorm, collision, theft, embezzlement, or other hazards against which insurance is normally carried in connection with activities or on properties such as those with respect to which the fiduciary procures insurance;

(25) To allocate items of receipts or disbursements to either corpus or income of the estate, as the fiduciary in the exercise of his or her best judgment and discretion deems to be proper, without thereby doing violence to clearly established and generally recognized principles of accounting;

(26) On behalf of the estate, to purchase or otherwise lawfully acquire real or personal property, or undivided interests therein, the ownership of which, in the judgment of the fiduciary, will be advantageous to the estate, and the beneficiary or beneficiaries thereof;

(27) To construct improvements on real property of the estate, or to remove or otherwise dispose of improvements, when the action is in the judgment of the fiduciary advisable and for the best interests of the estate;

(28) To exercise in person or by proxy, with or without a power of substitution vested in the proxy, all voting rights incident to the ownership of corporate stock or other securities constituting assets of the estate, and to exercise all other rights and privileges incident to the ownership of the securities, including, but not limited to, the right to sell, exchange, endorse, or otherwise transfer the securities, to consent to, or to oppose, reorganizations, consolidations, mergers, or other proposed corporate actions by the issuer of the securities, to exercise or decline to exercise options to purchase additional shares or units of the securities or of related securities, and to pay all assessments or other expenses necessary in the judgment of the fiduciary for the protection of the securities or of the value thereof;

(29) To employ any bank or trust company to serve as custodian of any securities constituting assets of the estate, and to cause the securities, if they are nonassessable, to be registered in the name of the custodian or of its nominee, without disclosure that they are held in a fiduciary capacity; to authorize the bank or trust company, as agent and on behalf of the fiduciary, to collect, receive, and receipt for income derived from the securities, or the proceeds of sales, assignments, or exchanges thereof made by authority and under the direction of the fiduciary, and to remit to the fiduciary the income or other proceeds derived from the securities; and to pay to the custodian reasonable and customary charges made by it for the performance of the services. However, any such action taken by the fiduciary shall not increase, decrease, or otherwise affect his or her liability, responsibility, or accountability with respect to the securities;

(30) To register nonassessable securities constituting assets of the estate in the name of the fiduciary or of his or her nominee, without disclosure that the securities are held in a fiduciary capacity, or to hold the securities unregistered or otherwise in a form that the title thereto will pass by delivery, without, in any case, increasing, decreasing, or otherwise affecting the fiduciary's liability, responsibility, or accountability with respect to the securities;

(31) In making distribution of capital assets of the estate to distributees under the provisions of this instrument, except when otherwise required by other provisions of this instrument, to make the distribution in kind or in cash, or partially in kind and partially in cash, as the fiduciary finds to be most practicable and for the best interests of the distributees; to distribute real property to two (2) or more distributees in division, or to partition the real property for the purpose of distribution, as the fiduciary in the exercise of his or her best judgment finds to be most practicable and for the best interests of the distributees; and to determine the value of capital assets for the purpose of making distribution of the assets if and when there is more than one (1) distributee. The determination shall be binding upon the distributees unless clearly capricious, erroneous, and inequitable;

(32) To do any and all other things, not in violation of any other terms of this instrument, which, in the judgment of the fiduciary, are necessary or appropriate for the proper management, investment, and distribution of the assets of the estate in accordance with the provisions of this instrument, and in his or her judgment are for the best interests of the estate and its beneficiaries;

(33) To inspect 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 laws affecting such property and to respond to any actual or threatened violation of any environmental law affecting property held by the fiduciary;

(34) To take, on behalf of the estate or trust, any action necessary to prevent, abate, or otherwise remedy any actual or threatened 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;

(35) To refuse to accept property in trust if the fiduciary determines that any property to be donated 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 a hazardous substance which could result in liability to the trust or otherwise impair the value of the assets held therein;

(36) 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;

(37) 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;

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

Ark. Code § 28-69-304

Acts 1961, No. 153, § 3; A.S.A. 1947, § 58-116; Acts 1993, No. 421, § 1.