An Irrevocable Trust is generally drafted so that it cannot be amended, modified, or revoked. An Irrevocable Trust can be a ‘living’ trust. This means it was created and funded during the lifetime of the Trustor. An Irrevocable Trust can also be a ‘testamentary’ trust. This means it was created and funded at death, either under the decedent’s will or revocable living trust.
Occasionally, the Trustor, Trustee, and/or beneficiaries of an irrevocable trust want to change the trust, possibly due to a change in circumstances. The trust document may give directions to allow the terms of the trust to be modified under certain circumstances. In this case the method described in the trust for the amendment controls how the process is to be accomplished. If the trust is silent on modification, the Uniform Trust Code, adopted in Oregon, gives two general methods for modifying an irrevocable trust.
First, ORS 130.200(6) allows for all ‘interested persons’ to enter into a binding Nonjudicial Settlement Agreement to modify or terminate the trust. All the parties must be in agreement and consent to the change(s). Interested persons are defined as:
- Any living settler (Trustor)
- All qualified beneficiaries
- Any acting trustee
Second, ORS 130.200(1) allows for modification or termination of the irrevocable trust with approval of the court with the consent of the settler (Trustor) and all beneficiaries who are not remote interest beneficiaries. The court can also approve a modification or termination of an irrevocable trust without the consent by all the beneficiaries who are not remote interest beneficiaries under certain circumstances.
In either case, it is important that everyone involved understands their rights and the consequences of amending or terminating the trust.
An experienced Estate Planning attorney can help you understand your options for modifying an irrevocable trust and assist you with the required documents to accomplish your goals. Contact the Estate Planning attorneys with the Law Offices of Nay & Friedenberg in Portland, Oregon at (503) 245-0894 to set an appointment.
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