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Irwin Law
Irwin Law, Attorney
Category: Estate Law
Satisfied Customers: 7276
Experience:  30+ yrs. handling probate estate, wills, trust, inheritance & real estate related matters
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As to an Irrevocable trust governed by the laws of the state

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As to an Irrevocable trust governed by the laws of the state of Nebraska, can the terms of the Irrevocable trust itself relieve the trustee of his common law duty to keep a beneficiary informed?

Hello: The trust is governed by Nebraska statutes, not common law. The trustee has to account to heirs according to state law. Nebraska has adopted the Uniform Trust Code which contains provisions for keeping beneficiaries informed: http://www.redressright.org/pdf/Uniform%20Trust%20Code%20utc.pdf See: Section 813 on page 22. State statutory provisions such as these will generally override provisions of the trust itself on "keeping beneficiaries informed". I can't imagine any trust having a provision that says the trustee shall not keep beneficiaries informed.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 4 years ago.
Actually, in the notice provisions of this particular Irrevocable Trust where one might expect to find the words "all beneficiaries" instead the phrase "a majority of the beneficiaries" is used, essentially allowing the Trustee to pick and choose which beneficiaries to keep informed and which others to leave in the dark. This extends to such things as notice of the resignation of the current Trustee needing to be sent only to a majority of the trustees. Notice of the subsequent election of a replacement Trustee also need only be sent to beneficiaries sufficient in number to elect a new Trustee by their unanimous vote. Hence my interest in whether statutory notice provisions are waivable. I expect to be the one left in the dark.

This unusual trust provision might (I suspect) have been used because the settlor wanted a particular group of beneficiaries to have control, and the trustee knows who they are. Might this be a first and second family situation? Also, the NB UTC was adopted in July 2005, so if the trust is dated prior to that, the UTC doesn't apply. If you want to try to find case law on this narrow of a subject, you will need research by a NB attorney.

Offhand, I would say that you will have to wait and see what the trustee does or doesn't do and if your interest as a beneficiary is somehow prejudiced by that, you will have to prove that the statute trumps the trust provisions under those circumstances. There is nothing that you can do in advance of the trustee acting on the notice provisions of the trust.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 4 years ago.
Not a first and second family but a favored and disfavored son.

Thanks for your help.
If there is only you and one other beneficiary, then there can be no majority without both of you. That is, unless the other son's family are also named beneficiaries. It's a tough situation to anticipate what's going to happen. I'll be off line for while.
Customer: replied 4 years ago.
Exactly. The settlor, my father, named myself and my wife, my brother and his wife AND their three children as beneficiaries, building in a majority for my brother's family.

Thanks again.

He could have simply named your brother as the successor trustee. Since he controls a majority vote anyway, the provision calling for notice only being given to a majority makes no sense. Why not give everyone notice, but require a majority vote? It might be hard to understand but that doesn't necessarily invalidate it.

 

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