[ §554D-411] Modification or termination of noncharitable irrevocable trust by consent.

355 words·~2 min read·/hi/554d-411

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)A noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's power to consent to a trust's modification or termination may be exercised by:

(1)An agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust;

(2)The settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or

(3)The settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed.

This subsection does not apply to irrevocable trusts created before or to revocable trusts that become irrevocable before January 1, 2022.

(b)A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.

(c)It is a question of fact whether a spendthrift provision constitutes a material purpose of the trust.

(d)Upon termination of a trust under subsection

(a)or (b), the trustee shall distribute the trust property as agreed to by the beneficiaries.

(e)If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection

(a)or (b), the modification or termination may be approved by the court if the court is satisfied that:

(1)If all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and

(2)The interests of a beneficiary who does not consent will be adequately protected. [L 2021, c 32, pt of §2]

Revision Note

"January 1, 2022" substituted for "the effective date of this chapter" pursuant to §23G-15.