Section 362.331

Title XXIV BUSINESS AND FINANCIAL INSTITUTIONS

Chapter 362

Effective - 28 Aug 1989   

  362.331.  Transfer of certain fiduciary capacities between affiliated banks and trust companies, procedure, liabilities — objection, procedure. — 1.  As used in this section, the following terms mean:

  (1)  "Affiliated entity", with respect to any bank or trust company, means any other bank or trust company at least eighty percent of the voting stock of which is owned or otherwise controlled by a corporation which also owns at least eighty percent of the voting stock of or otherwise controls the bank or trust company;

  (2)  "Bank", any bank organized under the provisions of this chapter which is duly authorized to exercise trust powers, and any national bank which is authorized to exercise such powers under the laws of the United States and which has its principal place of business in Missouri, including a national bank whose operations are limited to providing trust and other fiduciary services and related activities;

  (3)  "Fiduciary capacity", any capacity resulting from an appointment, designation or undertaking to act alone or jointly with others primarily for the benefit of others in matters connected with such appointment, designation or undertaking and includes, but is not limited to, acting as a trustee, including trustee of a common trust fund; executor; administrator; personal representative; registrar or transfer agent with respect to stocks, bonds or other evidences of indebtedness of any corporation, association, state, municipality, or public authority; guardian; conservator; custodian; assignee; depositary; receiver; agent, including escrow agent or agent for the investment of money; attorney-in-fact; or any other similar capacity.  The term "fiduciary capacity" includes all appointments and designations to any such capacity upon the death of a person serving in such capacity or upon the happening of any other future event;

  (4)  "Trust company", any trust company or bank organized under the laws of this state which is duly authorized to exercise trust powers.

  2.  Notwithstanding any other provision of law to the contrary, a bank or trust company may transfer by assignment to an affiliated entity any or all of the fiduciary capacities of such bank or trust company, without any order of or other action by any court or any consent or other approval of any interested person, except as provided in subsection 5 of this section, upon the prior approval of the director of finance and provided that such bank or trust company complies with the provisions of this section.  The assignment may designate all fiduciary capacities, a general class or classes of fiduciary capacities, or specified individual accounts or other particularly identified fiduciary capacities.

  3.  The bank or trust company, together with the affiliated entity, shall file an application for approval of the transfer of fiduciary capacities with the director of finance together with such other information as the director of finance may deem necessary.  Before the director of finance issues an order approving the transfer of fiduciary capacities, the bank or trust company shall also file proof in a form satisfactory to the director of finance that the bank or trust company has given written notice, including a summary of the provisions of subsection 5 of this section relating to objections to the transfer of the fiduciary accounts, of the proposed transfer by certified mail, at least thirty days prior to the filing of such proof, to all persons, firms, organizations or corporations who are known to it to be living or existing grantors under each affected trust or other fiduciary account or, if there is no such known living or existing grantor, to each living or existing beneficiary thereof known to it to have received any distribution transmitted by the bank or trust company with respect to such fiduciary account in the calendar year of the giving of such notice or the immediately preceding calendar year.  If any living or existing grantor or any such beneficiary delivers to the bank or trust company any communication regarding the proposed transfer, the bank or trust company shall furnish the director of finance with a copy of such communication together with any accompanying documents.  If the director of finance shall determine that the affiliated entity has the authority to act in such fiduciary capacities and is qualified to do so and that the transfer of such fiduciary capacities to the affected entity will not materially adversely affect the administration of the fiduciary accounts, he shall issue an order approving such transfer of fiduciary capacities.

  4.  After the director of finance issues an order approving the transfer of fiduciary capacities, the bank or trust company shall publish a notice of the transfer of fiduciary capacities pursuant to this section in a newspaper of general circulation in the county or city in which its main banking house or principal place of business, respectively, is located.  Upon the sixtieth day after the date of such publication, the transfer by assignment of fiduciary capacities shall be effective except with respect to any such fiduciary capacities which are then the subject of notice of objection pursuant to subsection 5 of this section.

  5.  Within sixty days after the publication of notice of the approval by the director of finance of the transfer of fiduciary capacities pursuant to subsection 4 of this section, any person who was entitled to receive a written notice pursuant to subsection 3 of this section may give written notice to the bank or trust company objecting to the transfer of the fiduciary account in which such person has an interest, and the bank or trust company shall petition the circuit court of the county or city in which the notice was published to determine whether the transfer of the fiduciary capacity to the affiliated entity will materially adversely affect the administration of such fiduciary account.  After notice to all interested parties and a hearing on the issues, the circuit court may appoint a new fiduciary to succeed the bank or trust company if it finds that the transfer of the fiduciary capacity to the affiliated entity will materially adversely affect the administration of the fiduciary account and that the appointment of a new fiduciary is in the best interests of the beneficiaries of such fiduciary account and, if the court does not so find, it shall direct the bank or trust company to transfer by assignment such fiduciary capacity to the affiliated entity.

  6.  Each appointment or other designation to a fiduciary capacity of a bank or trust company in a trust, will or other instrument executed after the effective date of any transfer by such bank or trust company pursuant to this section of all fiduciary capacities or a general class of fiduciary capacities in which such appointment or other designation is included shall be deemed an appointment or other designation of the affiliated entity substituted for such bank or trust company, except where the trust, will or other instrument by which such appointment or other designation is made expressly negates the provisions of this section.

  7.  On the effective date of the transfer of fiduciary capacities pursuant to this section, the transferring bank or trust company shall be released from all transferred fiduciary duties and shall cease to act in all such transferred fiduciary capacities, except that such transferring bank or trust company shall not be relieved of any liabilities arising out of a breach of fiduciary duty occurring prior to such effective date.  The transferring bank or trust company shall file an itemized accounting of any assets and liabilities in each transferred fiduciary account with the successor fiduciary upon the effective date of the transfer.  The failure by the bank or trust company to give any notice required by subsection 3 hereof with respect to any fiduciary account shall not affect the validity of the transfer of fiduciary capacities pursuant to this section with respect to any other fiduciary account.

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(L. 1989 S.B. 22)

CROSS REFERENCE:

Transfer of fiduciary obligations by bank or trust company, procedure, 362.332