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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 9971
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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My sister is the trustee of my mothers irrevocable trust here

Customer Question

My sister is the trustee of my mothers irrevocable trust here in the state of Pennsylvania. My sister, brother and I are beneficiaries and my mom is still alive. My mom wants to change her trustee (which is again my sister) because she is unhappy with her. My brother and I agree with our mom and we were wondering if it would be possible to take my sister off the trust as her trustee. Thank You
Submitted: 2 years ago.
Category: Estate Law
Expert:  LegalGems replied 2 years ago.
My goal is to provide great service - if you have any questions, please ask. A follow up consult with a personal attorney is always recommended.
A few moments please.
Expert:  LegalGems replied 2 years ago.
Thanks for your patience.
Yes, the court can modify the trust to change a trustee.
While court-approved modification or termination is easiest when all trust beneficiaries agree to the proposed action, unanimous consent is not necessary. A modification/termination that the court would approve if all the beneficiaries had consented may be approved when not all beneficiaries will consent as long as the interests of the non-consenting beneficiaries will be “adequately protected.”
statute located here and placed below: http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=77&sctn=40&subsctn=1
Relevant statutes here: 7740.1. Modification or termination of noncharitable irrevocable trust by consent - UTC 411.
(a) Consent by settlor and beneficiaries.--A noncharitable 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 purpose of the trust. A settlor's power to consent to a trust's modification or termination may be exercised by a guardian, an agent under the settlor's general power of attorney or an agent under the settlor's limited power of attorney that specifically authorizes that action. Notwithstanding Subchapter C (relating to representation), the settlor may not represent a beneficiary in the modification or termination of a trust under this subsection.
(b) Consent by beneficiaries with court approval.--A noncharitable irrevocable trust may be modified upon the consent of all the beneficiaries only if the court concludes that the modification is not inconsistent with a material purpose of the trust. A noncharitable irrevocable trust may be terminated upon consent of all the beneficiaries only if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust.
(b.1) Spendthrift provision.--A spendthrift provision in a trust instrument is presumed to constitute a material purpose of the trust.
(c) Distribution upon termination.--Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the beneficiaries.
(d) Consent by some beneficiaries with court approval.--If not all the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by the court only if the court is satisfied that:
(1) if all the beneficiaries had consented, the trust could have been modified or terminated under this section; and
(2) the interests of a beneficiary who does not consent will be adequately protected.
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Expert:  LegalGems replied 2 years ago.
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