A. The trustee may determine any of the following matters in administering a total return trust as the trustee deems necessary or helpful for the proper functioning of the trust:

(1) the effective date of a conversion to a total return trust pursuant to Section 46-3A-105 NMSA 1978;

(2) the manner of prorating the distribution amount for a short year in which a beneficiary's interest commences or ceases, or, if the trust is a total return trust for only part of the year, the trustee may elect to treat the trust year as two separate years, the first of which ends at the close of the day on which the conversion or reconversion occurs, and the second of which ends at the close of the trust year;

(3) whether distributions are made in cash or in-kind;

(4) the manner of adjusting valuations and calculations of the distribution amount to account for other payments from, or contributions to, the trust;

(5) whether to value the trust's assets annually or more frequently;

(6) which valuation dates to use and how many valuation dates to use; and

(7) valuation decisions concerning any asset for which there is no readily available market value, including:

(a) how frequently to value the asset;

(b) whether and how often to engage a professional appraiser to value the asset; and

(c) whether to exclude the value of the asset from the net fair market value of the trust's assets for purposes of determining the distribution amount.

B. For purposes of this section, any asset excluded pursuant to Subparagraph (c) of Paragraph (7) of Subsection A of this section shall be referred to as an "excluded asset" and the trustee shall distribute any net income received from the excluded asset as provided for in the governing instrument, subject to the following principles:

(1) the trustee shall treat each asset for which there is no readily available market value as an excluded asset unless the trustee determines that there are compelling reasons not to do so and the trustee considers all relevant factors, including the best interests of the beneficiaries;

(2) if tangible personal property or real property is possessed or occupied by a beneficiary, the trustee may not limit or restrict any right of the beneficiary to use the property in accordance with the governing instrument regardless of whether the trustee treats the property as an excluded asset;

(3) assets for which there is a readily available market value include cash and cash equivalents; stocks, bonds and other securities and instruments for which there is an established market on a stock exchange, in an over-the-counter market or otherwise; and any other property that can reasonably be expected to be sold within one week of the decision to sell without extraordinary efforts by the seller;

(4) assets for which there is no readily available market value include stocks, bonds and other securities and instruments for which there is no established market on a stock exchange, in an over-the-counter market or otherwise; real property; tangible personal property; and artwork and other collectibles.

History: Laws 2005, ch. 329, § 5.

Effective dates. — Laws 2005, ch. 329, § 12 made the act effective July 1, 2005.