uniform trust code - Kansas Judicial Branch

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on court order, effect a fair and reasonable compromise with any debtor).
UTC Comment
This section codifies the substance of Sections 177 and 178 of the Restatement (Second) of
Trusts (1959). It may not be reasonable to enforce a claim depending upon the likelihood of
recovery and the cost of suit and enforcement. It might also be reasonable to settle an action or
suffer a default rather than to defend an action. See also Section 816(14) (power to pay, contest,
settle, or release claims).
SECTION 812. COLLECTING TRUST PROPERTY. A trustee shall take reasonable
steps to compel a former trustee or other person to deliver trust property to the trustee, and to redress
a breach of trust known to the trustee to have been committed by a former trustee.
Kansas Comment
This specific provision is new, although consistent with Kansas law. K.S.A. 59-1710 provides that
the liability of a former trustee previously incurred is not affected by his or her resignation and the
appointment of another trustee. K.S.A. 58-1203(c)(25) gives the trustee power to prosecute claims
for the protection of trust property.
In In re Trusteeship of Prager, 106 Kan. 14, 186 P.2d 1015 (1920), the Kansas Supreme
Court held the duty to sue a former trustee depends upon the circumstances, such as whether
anything may be gained by suit.
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UTC Comment
This section is a specific application of Section 811 on the duty to enforce claims, which
includes a claim for trust property held by a former trustee or others, and a claim against a
predecessor trustee for breach of trust. The duty imposed by this section is not absolute. Pursuit of
a claim is not required if the amount of the claim, costs of suit and enforcement, and likelihood of
recovery, make such action uneconomic. Unlike Restatement (Second) of Trusts § 223 (1959), this
section only requires a successor trustee to redress breaches of trust “known” to have been
committed by the predecessor. For the definition of “know,” see Section 104. Limiting the
successor’s obligation to known breaches is a common feature of state trust statutes. See, e.g., Mo.
Rev. Stat. § 456.187.2.
As authorized by Section 1009, the beneficiaries may relieve the trustee from potential
liability for failing to pursue a claim against a predecessor trustee or other person holding trust
property. The obligation to pursue a successor trustee can also be addressed in the terms of the trust.
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