TITLE 12 Decedents’ Estates and Fiduciary Relations Fiduciary Relations CHAPTER 33. This chapter shall govern investments and fair value accounting chapter 15, as well as agents in certain instances, now or hereafter acting under governing instruments.
The term “governing instrument” shall mean a will, trust agreement or declaration, court order or other instrument that creates or defines the duties and powers of a fiduciary and shall include any instrument that modifies a governing instrument or, in effect, alters the duties and powers of a fiduciary or other terms of a governing instrument. The term “wilful misconduct” shall mean intentional wrongdoing, not mere negligence, gross negligence or recklessness and “wrongdoing” means malicious conduct or conduct designed to defraud or seek an unconscionable advantage. The term “fiduciary fund” means the trust, estate, guardianship account, or account established under a Uniform Transfers to Minors Act that is being administered by a fiduciary. Is the minor with respect to an account established under a Uniform Transfers to Minors Act . The term “wilful misconduct” means intentional wrongdoing, not mere negligence, gross negligence or recklessness and “wrongdoing” means malicious conduct or conduct designed to defraud or seek an unconscionable advantage. When investing, reinvesting, purchasing, acquiring, exchanging, retaining, selling and managing property for the benefit of another, a fiduciary shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use to attain the purposes of the account.
Any determination of liability for investment performance shall consider the performance of the entire portfolio and such other factors as the fiduciary considered when the investment decision was made. Inquire about changes in the health or financial condition of the insured or insureds relative to any such contract. Any fiduciary acting under a governing instrument shall not be liable to anyone whose interests arise from that instrument for breach of fiduciary duty for the fiduciary’s good faith reliance on the express provisions of such instrument. The standards set forth in this section may be expanded, restricted or eliminated by express provisions in a governing instrument. Fees may be charged for making an investment through a computerized or automated process, such as sweeping otherwise uninvested cash into a cash management vehicle, provided that the amount of such fees is disclosed on a continuing basis as a separate item on the regular periodic statements furnished to the beneficiaries of the account.
The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this section. A period of time related to a specific event that is certain to occur. 3304 Retention by fiduciary of decedent’s or settlor’s investments. 3305 Retention by bank or trust company acting as a fiduciary of its own stock.
3306 Deviation from terms of instrument. 3303 of this title, nothing contained in this chapter shall be construed as restricting the power of a court of proper jurisdiction to permit fiduciaries to deviate from the terms of any will, agreement or other instrument relating to the acquisition, investment, reinvestment, exchange, retention, sale or management of fiduciary property. At least once each 3 months, as of a predetermined date, a bank or trust company administering a common fund shall determine the fair value of the assets in the common fund. No fractional interest in the common fund shall be acquired or redeemed except on the basis of such valuation and as of such valuation date. 3302 of this title and under the terms of the plan of a common fund. If a fractional interest is acquired with property other than cash, such property shall be valued for the purposes of the acquisition in the same manner as assets are valued when held in the common fund and the purchaser shall bear all costs of the transfer to the common fund of title to such property. A reasonable period following each such predetermined date may be used to make the computations necessary to determine the value of the common fund and of the participations therein.