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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 40133
Experience:  Texas lawyer for 30 years in Estate law
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How difficult would it be to break a trust that was

Customer Question

How difficult would it be to break a trust that was specifically detailed in the descendants (uncle)will and presently involves 3 sibling beneficiaries (niece & 2 nephews) and 2 remaindermen (grandchildren) The goal would be to take possession of the principal and distribute it evenly to the beneficiaries. It is presently setup as a unitrust. . . Total return. .. Distributed evenly among the surviving beneficiaries . . . The principal amount is to pass to the 2 remaindermen once the 3 beneficiaries are deceased. I can get you a copy of the will if necessary.
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.

Customer: replied 1 year ago.
Do you need anything else from me?
Expert:  RayAnswers replied 1 year ago.

No here you would have to petition the court and show that this is in the best interests of the beneficiaries to terminate

the trust here as you suggest.You appear to have good facts to do so and have court approve it .

Expert:  RayAnswers replied 1 year ago.

Law for reference..

36C-4-411. Modification or termination of noncharitable irrevocable trust by consent.

(a)

If the settlor and all beneficiaries of a noncharitable irrevocable trust consent, they

may compel the modification or termination of the trust without the approval of the court even

if the modification or termination is inconsistent with a material purpos

e of the trust. If any

beneficiary (i) is a minor or incompetent or a person who is unborn or whose identity or

location is unknown and (ii) is unable to be represented under Article 3 of this Chapter, the

settlor or any competent adult beneficiary or the

representative of any beneficiary properly

represented under Article 3 of this Chapter may institute a proceeding before the court to

appoint a guardian ad litem. The court shall allow the modification or termination if the court

finds that, following the

appointment of a guardian ad litem, all beneficiaries or their

representatives have consented. A settlor's power to consent to a trust's modification or

termination may be exercised by:

(1)

An agent under a power of attorney only to the extent expressly au

thorized

by the power of attorney or the terms of the trust.

(2)

The settlor's general guardian or the guardian of the estate with the approval

of the court supervising the guardianship.

(b)

A noncharitable 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. A noncharitable irrevocable trust may be modified upon consent

of all of the beneficiaries, if the court conclud

es that modification is consistent with a material

purpose of the trust.

(c)

Where the beneficiaries of an a noncharitable irrevocable trust seek to compel a

termination of the trust and the continuance of the trust is necessary to carry out a material

pur

pose of the trust, or where the beneficiaries seek to compel a modification of the trust in a

manner that is inconsistent with its material purpose, the trust may be modified or terminated,

in the discretion of the court, only if the court determines that

the reason for modifying or

terminating the trust under the circumstances substantially outweighs the interest in

accomplishing a material purpose of the trust.

(d)

If not all of the beneficiaries consent to a proposed modification or termination of

the tr

ust under subsection (a), (b), or (c) of this section, the modification or termination may be

approved by the court if the court is satisfied that all of the following apply:

(1)

If all of the beneficiaries had consented, the trust could have been modified

or terminated under this section.

(2)

The interests of a beneficiary who does not consent will be adequately

protected.

(e)

Repealed by Session Laws 2006

-

259, s. 13(d), effective October 1, 2006.

(f)

In determining the class of beneficiaries whose consent

is necessary to modify or

terminate a trust under this section, the presumption of fertility is rebuttable.

(g)

If a trust instrument provides for the disposition of property to a class of persons

described only as "heirs" or "next of kin" of any person o

r uses other words that describe the

class of all persons who would take under the rules of intestacy, the court may limit the class of

beneficiaries whose consent is needed to compel the modification or termination of the trust to

the beneficiaries who ar

e reasonably likely to take under the circumstances.

(2005

-

192, s. 2;

2006

-

259, s. 13(d); 2007

-

106, s. 17.)

§ 36C

-

4

-

412. Modification or termination because of unanticipated circumstances or

inability to administer trust effectively.

(a)

The court may modify the administrative or dispositive terms of a trust or terminate

the trust if, because of circumstances not antic

ipated by the settlor, modification or termination

will further the purposes of the trust. To the extent practicable, the modification must be made

in accordance with the settlor's probable intention.

(b)

The court may modify the administrative terms of a

trust if continuation of the trust

on its existing terms would be impracticable or wasteful or impair the trust's administration.

Expert:  RayAnswers replied 1 year ago.

Trust lawyer for you here to help you file.

http://www.bbb.org/raleigh-durham/accredited-business-directory/attorneys-wills-trust-and-probate/raleigh-nc

You can do this by agreement of all beneficiaries or motion the court and argue that it benefits all and that all are protected here.

I appreciate your patience today.Please let me know if you have more follow up.Thanks again.

Have a Happy Halloween.