35-15-411 - Modification or termination of noncharitable irrevocable trust by consent.
35-15-411. Modification or termination of noncharitable irrevocable trust by consent.
(a) During the settlor's lifetime, a noncharitable irrevocable trust may be modified or terminated by the trustee upon consent of all qualified beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust if the settlor does not object to the proposed modification or termination. The trustee shall notify the settlor of the proposed modification or termination not less than sixty (60) days before initiating the modification or termination. The notice of modification or termination must include:
(1) An explanation of the reasons for the proposed modification or termination;
(2) The date on which the proposed modification or termination is anticipated to occur; and
(3) The date, not less than sixty (60) days after the giving of the notice, by which the settlor must notify the trustee of an objection to the proposed modification or termination.
(b) Following the settlor's death, a noncharitable irrevocable trust may be terminated upon consent of all of the qualified 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 qualified beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
(c) Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the qualified beneficiaries.
(d) If not all of the qualified 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 qualified beneficiaries had consented, the trust could have been modified or terminated under this section; and
(2) The interests of a qualified beneficiary who does not consent will be adequately protected.
(e) Solely for purposes of this section, the term noncharitable irrevocable trust refers to a trust that is not revocable by the settlor with respect to which:
(1) No federal or state income, gift, estate or inheritance tax charitable deduction was allowed upon transfers to the trust; and
(2) The value of all interests in the trust owned by charitable organizations does not exceed five percent (5%) of the value of the trust.
(f) Notwithstanding subsection (a), the trustee may seek court approval of a modification or termination.
[Acts 2004, ch. 537, § 33; 2007, ch. 24, §§ 15-19.]