Section 8105 - Power to convert to unitrust(a) Conversion.--Unless expressly prohibited by the governing instrument, a trustee may release the power under section 8104 (relating to trustee's power to adjust) and convert a trust into a unitrust as described in this section if all of the following apply: (1) The trustee determines that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust.(2) The trustee gives written notice of the trustee's intention to release the power to adjust and to convert the trust into a unitrust and of how the unitrust will operate, including what initial decisions the trustee will make under this section, to all the sui juris beneficiaries who:(i) are currently eligible to receive income from the trust;(ii) would be eligible to receive, if no powers of appointment were exercised, income from the trust if the interest of all those eligible to receive income under subparagraph (i) were to terminate immediately prior to the giving of notice; and(iii) would receive, if no powers of appointment were exercised, a distribution of principal if the trust were to terminate immediately prior to the giving of notice.(3) There is at least one sui juris beneficiary under paragraph (2)(i) and at least one sui juris beneficiary under either paragraph (2)(ii) or (iii).(4) No sui juris beneficiary objects to the conversion to a unitrust in a writing delivered to the trustee within 60 days of the mailing of the notice under paragraph (2).(b) Judicially approved conversion.--(1) The trustee may petition the court to approve the conversion to a unitrust if any of the following apply:(i) A beneficiary timely objects to the conversion to a unitrust.(ii) There are no sui juris beneficiaries under subsection (a)(2)(i).(iii) There are no sui juris beneficiaries under either subsection (a)(2)(ii) or (iii).(2) A beneficiary may request a trustee to convert to a unitrust. If the trustee does not convert, the beneficiary may petition the court to order the conversion.(3) The court shall approve the conversion or direct the requested conversion if the court concludes that the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purposes of the trust.(c) Consideration.--In deciding whether to exercise the power conferred by subsection (a), a trustee may consider, among other things, all of the following:(1) The size of the trust.(2) The nature and estimated duration of the trust.(3) The liquidity and distribution requirements of the trust.(4) The needs for regular distributions and preservation and appreciation of capital.(5) The expected tax consequences of the conversion.(6) The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property or real property; and the extent to which an asset is used by a beneficiary.(7) To the extent reasonably known to the trustee, the needs of the beneficiaries for present and future distributions authorized or required by the governing instrument.(8) Whether and to what extent the governing instrument gives the trustee the power to invade principal or accumulate income or prohibits the trustee from invading principal or accumulating income and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income.(9) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation.(d) Post conversion.--After a trust is converted to a unitrust, all of the following apply:(1) The trustee shall follow an investment policy seeking a total return for the investments held by the trust, whether the return is to be derived: (i) from appreciation of capital;(ii) from earnings and distributions from capital; or(2) The trustee shall make regular distributions in accordance with the governing instrument construed in accordance with the provisions of this section.(3) The term "income" in the governing instrument shall mean an annual distribution (the unitrust distribution) equal to 4% (the payout percentage) of the net fair market value of the trust's assets, whether such assets would be considered income or principal under other provisions of this chapter, averaged over the lesser of: (i) the preceding years in the smoothing period selected by the trustee; or(ii) the period during which the trust has been in existence.(e) Discretion of trustee.--The trustee may, in the trustee's discretion from time to time, determine all of the following:(1) The effective date of a conversion to a unitrust.(2) The provisions for prorating a unitrust distribution for a short year in which a beneficiary's right to payments commences or ceases.(3) The frequency of unitrust distributions during the year.(4) The effect of other payments from or contributions to the trust on the trust's valuation.(5) Whether to value the trust's assets annually or more frequently.(5.1) Whether to average the net assets of the trust over a smoothing period of three, four or five years.(6) What valuation dates to use.(7) How frequently to value nonliquid assets and whether to estimate their value.(8) Whether to omit from the calculations trust property occupied or possessed by a beneficiary.(9) Any other matters necessary for the proper functioning of the unitrust.(f) Allocation.--(1) Expenses which would be deducted from income if the trust were not a unitrust may not be deducted from the unitrust distribution.(2) Unless otherwise provided by the governing instrument, the unitrust distribution shall be considered to have been paid from the following sources in order of priority: (i) net income determined as if the trust were not a unitrust;(ii) ordinary income for Federal income tax purposes that is not allocable to net income under subparagraph (i);(iii) net realized short-term capital gains for Federal income tax purposes;(iv) net realized long-term capital gains for Federal income tax purposes; and(v) the principal of the trust estate.(g) Court orders.--The trustee or, if the trustee declines to do so, a beneficiary may petition the court to:(1) Select a payout percentage different than 4%.(2) Provide for a distribution of net income, as would be determined if the trust were not a unitrust, in excess of the unitrust distribution if such distribution is necessary to preserve a tax benefit.(3) Average the valuation of the trust's net assets over a period other than three years.(4) Reconvert from a unitrust. Upon a reconversion, the power to adjust under section 8104 shall be revived.(g.1) Reconversion from unitrust.--A trustee may reconvert a unitrust following the same procedures as in subsection (a) for converting a trust into a unitrust with the exception that the written notice shall state that the intent is to reconvert the unitrust into a trust for which income is defined under this chapter. Upon reconversion, the power to adjust under section 8104 shall be revived.(h) Application.--A conversion to a unitrust does not affect a provision in the governing instrument directing or authorizing the trustee to distribute principal or authorizing a beneficiary to withdraw a portion or all of the principal.(i) Prohibited conversions.--A trustee may not convert a trust into a unitrust in any of the following circumstances: (1) If payment of the unitrust distribution would change the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets.(2) If the unitrust distribution would be made from trust funds which are permanently set aside for charitable purposes under the governing instrument and for which a Federal estate or gift tax charitable deduction has been taken, unless both income and principal are so set aside. If both income and principal are so set aside, then section 8113 (relating to charitable trusts) and not this section shall be available.(3) If: (i) possessing or exercising the power to convert would cause an individual to be treated as the owner of all or part of the trust for Federal income tax purposes; and(ii) the individual would not be treated as the owner if the trustee did not possess the power to convert.(4) If: (i) possessing or exercising the power to convert would cause all or part of the trust assets to be subject to Federal estate or gift tax with respect to an individual; and(ii) the assets would not be subject to Federal estate or gift tax with respect to the individual if the trustee did not possess the power to convert.(5) If the conversion would result in the disallowance of a Federal estate tax or gift tax marital deduction which would be allowed if the trustee did not have the power to convert.(6) If the trustee is a beneficiary of the trust.(j) Permissible conversion when otherwise prohibited.--(1) If subsection (i)(3), (4) or (6) applies to a trustee and there is more than one trustee, a co-trustee to whom the provision does not apply may convert the trust unless the exercise of the power by the remaining trustee or trustees is prohibited by the governing instrument.(2) If subsection (i)(3), (4) or (6) applies to all the trustees, the trustees may petition the court to direct a conversion.(k) Release of the power to convert.--(1) A trustee may release the power conferred by subsection (a) to convert to a unitrust if any of the following apply:(i) The trustee is uncertain about whether possessing or exercising the power will cause a result described in subsection (i)(3), (4) or (5).(ii) The trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (i).(2) The release may be permanent or for a specified period, including a period measured by the life of an individual.2002, May 16, P.L. 330, No. 50, § 13, effective in 60 days. Amended 2006, July 7, P.L. 625, No. 98, §11, effective in 60 days [ 9/5/2006]; 2010, Oct. 27, P.L. 837, No. 85, §8, effective in 60 days [ 12/27/2010].