Montana Code 72-38-602. Revocation or amendment of revocable trust
72-38-602. Revocation or amendment of revocable trust. (1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before October 1, 1989.
Terms Used In Montana Code 72-38-602
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Conservator: means a person appointed by the court to administer the estate of a minor or adult individual. See Montana Code 72-38-103
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein. See Montana Code 72-38-103
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Settlor: means a person, including a testator, who creates or contributes property to a trust. See Montana Code 72-38-103
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See Montana Code 72-38-103
- Terms of a trust: means :
(a)except as otherwise provided in subsection (21)(b), the manifestation of the settlor's intent regarding a trust's provisions as:
(i)expressed in the trust instrument; or
(ii)established by other evidence that would be admissible in a judicial proceeding; or
(b)the trust's provisions as established, determined, or amended by:
(i)a trustee or trust director in accordance with applicable law;
(ii)court order; or
(iii)a nonjudicial settlement agreement under 72-38-111. See Montana Code 72-38-103
- Trustee: A person or institution holding and administering property in trust.
- Trustee: includes an original, additional, and successor trustee and a cotrustee. See Montana Code 72-38-103
- Writing: includes printing. See Montana Code 1-1-203
(2)If a revocable trust is created or funded by more than one settlor:
(a)to the extent the trust consists of community property, the trust may be revoked by either party acting alone but may be amended only by joint action of both parties;
(b)to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard the portion of the trust property attributable to that settlor’s contribution; and
(c)upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly provide notice to the other settlors of the revocation or amendment.
(3)The settlor may revoke or amend a revocable trust:
(a)by substantial compliance with a method provided in the terms of the trust; or
(b)if the terms of the trust do not provide a method, by a writing delivered to the trustee manifesting clear and convincing evidence of the settlor’s intent.
(4)Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. However, with respect to community property under subsection (2)(a), the trustee shall deliver the property to the respective spouses, proportionate to their respective shares of the community property as prescribed by the laws of the state out of which the community property interest arose, and the nonrevoking spouse may elect to have the trust continue with respect to that spouse’s share of the community property.
(5)A settlor’s powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust and the power of attorney.
(6)A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.
(7)A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor’s successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.