Montana Code 72-38-411. Modification or termination of irrevocable trust by consent
72-38-411. Modification or termination of irrevocable trust by consent. (1) An 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 noncharitable purpose of the trust. Modification or termination of a charitable trust requires the consent of the attorney general. A settlor’s power to consent to a trust’s modification or termination may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney and the terms of the trust; by the settlor’s conservator with the approval of the court supervising the conservatorship if an agent is not so authorized; or by 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 became irrevocable before October 1, 1989.
Terms Used In Montana Code 72-38-411
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Beneficiary: means a person who:
(a)has a present or future beneficial interest in a trust, vested or contingent; or
(b)in a capacity other than that of trustee, holds a power of appointment over trust property. See Montana Code 72-38-103
- Charitable trust: means a trust or portion of a trust created for a charitable purpose described in 72-38-405(1). See Montana Code 72-38-103
- Conservator: means a person appointed by the court to administer the estate of a minor or adult individual. See Montana Code 72-38-103
- Continuance: Putting off of a hearing ot trial until a later time.
- Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
- 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
- Settlor: means a person, including a testator, who creates or contributes property to a trust. See Montana Code 72-38-103
- Spendthrift provision: means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest. See Montana Code 72-38-103
(2)An 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. An 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. Modification or termination of a charitable trust requires the consent of the attorney general.
(3)For the purposes of this section, a spendthrift provision in the terms of the trust is not presumed to constitute a material purpose of the trust.
(4)Upon termination of a trust under subsection (1) or (2), the trustee shall distribute the trust property as agreed by the beneficiaries. In the case of a charitable trust, the trust property must be distributed in accord with the terms of the trust, and in the absence of applicable terms, consistent with the charitable purposes of the trust as agreed by the attorney general and the beneficiaries or, if there are no charitable organizations with the rights of a beneficiary and the termination is pursuant to subsection (1), then as agreed by the settlor and the attorney general, but if the termination is pursuant to subsection (2), then as decided by the court.
(5)If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (1) or (2), the modification or termination may be approved by the court if the court is satisfied that:
(a)if all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and
(b)the interests of a beneficiary who does not consent will be adequately protected.