(1) If any part of a principal in the possession of a trustee consists of realty or personalty that for more than a year and until disposed of as stated in this section has not produced an average net income of at least one percent per annum of its fair inventory value, which in the case of a testamentary trust, unless a contrary intention appears from the will, shall be the value at date of death, or, in default thereof, its market value at the time the principal was established or of its cost where purchased later, and the trustee is under a duty to change the form of the investment as soon as it may be done without sacrifice of value and such change is delayed, but is made before the principal is finally distributed, then the tenant, or, in case of his or her death, his or her personal representative, shall be entitled to share in the net proceeds received from the property as delayed income to the extent stated in this section.
Such income shall be the difference between the net proceeds received from theproperty and the amount which, had it been placed at simple interest at the rate of four percent per annum for the period during which the change was delayed, would have produced the net proceeds at the time of change, but in no event shall such income be more than the amount by which the net proceeds exceed the fair inventory value of the property, which in the case of a testamentary trust, unless a contrary intention appears from the will, shall be the value at the date of death, or, in default thereof, its market value at the time the principal was established or its cost where purchased later. The net proceeds shall consist of the gross proceeds received from the property less any expenses incurred in disposing of it and less all carrying charges which have been paid out of principal during the period while it has been unproductive.
The time the change is delayed starts when the duty to make it first arose, which shallbe presumed, in the absence of evidence to the contrary, to be:
One year after the trustee first received the property if the property was unproductiveat that time; or
One year after the property became unproductive.
If the tenant has received any income from the property or has had any beneficial usethereof during the period while the change has been delayed, his or her share of the delayed income shall be reduced by the amount of such income received or the value of the use had.
In the case of successive tenants, the delayed income shall be divided among them ortheir representatives according to the length of the period for which each was entitled to income.
Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 754, § 14, effective April 22.