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   Conversion to Unitrust
    
         
         
         16336.4
         
         (a)
         
         
         Unless expressly prohibited by the governing
         instrument, a trustee may convert a trust into a unitrust, as
         described in this section. A trust that limits the power of the
         trustee to make an adjustment between principal and income or modify
         the trust does not affect the application of this section unless it
         is clear from the governing instrument that it is intended to deny
         the trustee the power to convert into a unitrust.
 (b)
         
         
          The trustee may convert a trust into a unitrust without a
         court order if all of the following apply:
 (1)
         
         
           The conditions set forth in subdivision (a) of Section 16336
         are satisfied.
 (2)
         
         
           The unitrust proposed by the trustee conforms to the
         provisions of paragraphs (1) to (8), inclusive, of subdivision (e).
 (3)
         
         
          The trustee gives written notice of the trustee's intention to
         convert the trust into a unitrust and furnishes the information
         required by subdivision (c). The notice shall comply with the
         requirements of Chapter 5 (commencing with Section 16500), including
         notice to a beneficiary who is a minor and to the minor's guardian,
         if any.
 (4)
         
         
          No beneficiary objects to the proposed action in a writing
         delivered to the trustee within the period prescribed by subdivision
         (d) of Section 16502 or a longer period as is specified in the notice
         described in subdivision (c).
 (c)
         
         
           The notice described in paragraph (3) of subdivision (b) shall
         include a copy of Sections 16336.4 to 16336.7, inclusive, and all of
         the following additional information:
 (1)
         
         
           A statement that the trust shall be administered in accordance
         with the provisions of subdivision (e) and the effective date of the
         conversion.
 (2)
         
         
           A description of the method to be used for determining the
         fair market value of trust assets.
 (3)
         
         
           The amount actually distributed to the income beneficiary
         during the previous accounting year of the trust.
 (4)
         
         
           The amount that would have been distributed to the income
         beneficiary during the previous accounting year of the trust had the
         trustee's proposed changes been in effect during that entire year.
 (5)
         
         
            The discretionary decisions the trustee proposes to make as
         of the conversion date pursuant to subdivision (f).
 (d)
         
         
           In deciding whether to exercise the power conferred by this
         section, a trustee may consider, among other things, the factors set
         forth in subdivision (g) of Section 16336.
 (e)
         
         
           Except to the extent that the court orders otherwise or the
         parties agree otherwise pursuant to Section 16336.5 after a trust is
         converted to a unitrust, all of the following shall apply:
 (1)
         
         
           The trustee shall make regular distributions in accordance
         with the governing instrument construed in accordance with the
         provisions of this section.
 (2)
         
         
           The term "income" in the governing instrument shall mean an
         annual distribution, the unitrust amount, equal to 4 percent, which
         is the payout percentage, of the net fair market value of the trust's
         assets, whether those assets would be considered income or principal
         under other provisions of this chapter, averaged over the lesser of:
 (A)
         
         
         the three preceding years, or
 (B)
         
         
        the period during which the
         trust has been in existence.
 (3)
         
         
           During each accounting year of the trust following its
         conversion into a unitrust, the trustee shall, as early in the year
         as is practicable, furnish each income beneficiary with a statement
         describing the computation of the unitrust amount for that accounting
         year.
 (4)
         
         
           The trustee shall determine the net fair market value of each
         asset held in the trust no less often than annually. However, the
         following property shall not be included in determining the unitrust
         amount:
 (A)
         
         
           Any residential property or any tangible personal property
         that, as of the first business day of the current accounting year,
         one or more current beneficiaries of the trust have or have had the
         right to occupy, or have or have had the right to possess or control,
         other than in his or her capacity as trustee of the trust, which
         property shall be administered according to other provisions of this
         chapter as though no conversion to a unitrust had occurred.
 (B)
         
         
           Any asset specifically devised to a beneficiary to the extent
         necessary, in the trustee's reasonable judgment, to avoid a material
         risk of exhausting other trust assets prior to termination of the
         trust. All net income generated by a specifically devised asset
         excluded from the unitrust computation pursuant to this subdivision
         shall be accumulated or distributed by the trustee according to the
         rules otherwise applicable to that net income pursuant to other
         provisions of this chapter.
 (C)
         
         
           Any asset while held in a testator's estate or a terminating
         trust.
 (5)
         
         
           The unitrust amount, as otherwise computed pursuant to this
         subdivision, shall be reduced proportionately for any material
         distribution made to accomplish a partial termination of the trust
         required by the governing instrument or made as a result of the
         exercise of a power of appointment or withdrawal, other than
         distributions of the unitrust amount, and shall be increased
         proportionately for the receipt of any material addition to the
         trust, other than a receipt that represents a return on investment,
         during the period considered in paragraph (2) in computing the
         unitrust amount. For the purpose of this paragraph, a distribution or
         an addition shall be "material" if the net value of the distribution
         or addition, when combined with all prior distributions made or
         additions received during the same accounting year, exceeds 10
         percent of the value of the assets used to compute the unitrust
         amount as of the most recent prior valuation date. The trustee may,
         in the reasonable exercise of his or her discretion, adjust the
         unitrust amount pursuant to this subdivision even if the
         distributions or additions are not sufficient to meet the definition
         of materiality set forth in the preceding sentence.
 (6)
         
         
           In the case of a short year in which a beneficiary's right to
         payments commences or ceases, the trustee shall prorate the unitrust
         amount on a daily basis.
 (7)
         
         
           Unless otherwise provided by the governing instrument or
         determined by the trustee, the unitrust amount shall be considered
         paid in the following order from the following sources:
 (A)
         
         
           From the net taxable income, determined as if the trust were
         other than a unitrust.
 (B)
         
         
           From net realized short-term capital gains.
 (C)
         
         
           From net realized long-term capital gains.
 (D)
         
         
           From tax-exempt and other income.
 (E)
         
         
           From principal of the trust.
 (8)
         
         
           Expenses that would be deducted from income if the trust were
         not a unitrust may not be deducted from the unitrust amount.
 (f)
         
         
           The trustee shall determine, in the trustee's discretion, all
         of the following matters relating to administration of a unitrust
         created pursuant to this section:
 (1)
         
         
           The effective date of a conversion to a unitrust.
 (2)
         
         
           The frequency of payments in satisfaction of the unitrust
         amount.
 (3)
         
         
           Whether to value the trust's assets annually or more
         frequently.
 (4)
         
         
           What valuation dates to use.
 (5)
         
         
           How to value nonliquid assets.
 (6)
         
         
           The characterization of the unitrust payout for income tax
         reporting purposes. However, the trustee's characterization shall be
         consistent.
 (7)
         
         
           Any other matters that the trustee deems appropriate for the
         proper functioning of the unitrust.
 (g)
         
         
           A conversion into a unitrust does not affect a provision in
         the governing instrument directing or authorizing the trustee to
         distribute principal or authorizing the exercise of a power of
         appointment over or withdrawal of all or a portion of the principal.
 (h)
         
         
           A trustee may not convert a trust into a unitrust in any of
         the following circumstances:
 (1)
         
         
           If payment of the unitrust amount 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 any amount
         that is permanently set aside for charitable purposes under the
         governing instrument and for which a federal estate or gift tax
         deduction has been taken, unless both income and principal are set
         aside.
 (3)
         
         
           If 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 the individual would not be
         treated as the owner if the trustee did not possess the power to
         convert.
 (4)
         
         
           If 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 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 that would be
         allowed if the trustee did not have the power to convert.
 (i)
         
         
           If paragraph (3) or (4) of subdivision (h) applies to a
         trustee and there is more than one trustee, a cotrustee 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. If paragraph (3) or (4) of subdivision (h)
         applies to all of the trustees, the court may order the conversion as
         provided in subdivision (b) of Section 16336.5.
 (j)
 (1)
         
         
    A trustee may release the power conferred by this section
   to convert to a unitrust if either of the following circumstances
   exist:
 (A)
         
         
    The trustee is uncertain about whether possessing or
   experiencing the power will cause a result described in paragraph
   (3), (4), or (5) of subdivision (h).
 (B)
         
         
   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 subdivision (h).
 (2)
         
         
    A release pursuant to paragraph (1) may be permanent or for a
   specified period, including a period measured by the life of an
   individual.
 
 
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