BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1158 (Anderson)
          Version: April 25, 2016
          Hearing Date:  May 3, 2016
          Fiscal: No
          Urgency: No
          TMW


                                        SUBJECT
                                           
                        Trusts:  modification or termination

                                      DESCRIPTION  

          This bill would clarify the ability of all beneficiaries of an  
          irrevocable trust to petition the court for a modification or  
          termination of the trust.  This bill would also require the  
          court to consider, in making a determination with respect to a  
          proposed termination of an irrevocable trust, whether the trust  
          is subject to a valid restraint on the transfer of a  
          beneficiary's interest.  This bill, if the irrevocable trust  
          provides for the disposition of principal to a class of persons  
          described only as "heirs" or "next of kin" of the settlor, or  
          using other words that describe the class of all persons who  
          would take under the rules of intestacy, would authorize the  
          court to limit the class of beneficiaries whose consent is  
          needed to compel the modification or termination of the trust to  
          the beneficiaries who are reasonably likely to take under the  
          circumstances.

          This bill would clarify that an irrevocable trust may be  
          modified or terminated by the written consent of the settlor and  
          all beneficiaries without court approval of the modification or  
          termination.  This bill would also make other clarifying changes  
          related to a petition by consenting beneficiaries, with the  
          consent of the settlor, for modification or partial termination  
          of an irrevocable trust.

                                      BACKGROUND  

          As part of a person's estate planning, he or she may create a  
          trust into which the person transfers specified property.   
          Trusts are commonly used to avoid probate of the person's estate  
          upon the person's death and may provide certain tax advantages  







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          relative to the property.  There are two types of trust estate  
          plans; a testamentary trust, which is written into a will and  
          becomes effective upon death, and a living or inter vivos trust,  
          which is created by a separate document.  There are two types of  
          inter vivos trusts, revocable and irrevocable.  Unlike a  
          revocable trust, an irrevocable trust does not permit the person  
          creating the trust, referred to as the settlor, to revoke,  
          alter, and amend the trust without the consent of the  
          beneficiaries of the trust.

          Existing law provides procedures for modification or termination  
          of an irrevocable trust when the settlor and beneficiaries  
          consent to the trust.  If the settlor is not available to  
          consent to modification or termination of the trust, the consent  
          of all of the beneficiaries is required, and the beneficiaries  
          must follow separate procedures to modify or terminate the  
          trust.  This bill would revise these procedures.

          A prior version of this bill would have changed the presumption  
          in favor of maintaining the settlor's ability to direct his or  
          her money as he or she pleased through testamentary documents to  
          instead create a presumption that the court's determination,  
          based upon the beneficiaries' assertions, was more favorable  
          than maintaining the settlor's intent.  Recent amendments remove  
          those provisions from the bill.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that, unless a trust is expressly made  
          irrevocable by the trust instrument, the trust is revocable by  
          the settlor.  (Prob. Code Sec. 15400.)

           Existing law  provides that if all beneficiaries of an  
          irrevocable trust consent, they may compel modification or  
          termination of the trust upon petition to the court.  (Prob.  
          Code Sec. 15403(a).)  However, if the continuance of the trust  
          is necessary to carry out a material purpose of the trust, the  
          trust cannot be modified or terminated unless the court, in its  
          discretion, determines that the reason for doing so under the  
          circumstances outweighs the interest in accomplishing a material  
          purpose of the trust.  (Prob. Code Sec. 15403(b).)

           Existing law  prohibits the court from permitting termination of  
          the trust that is subject to a valid restraint on transfer of  








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          the beneficiary's interest, as specified.  (Prob. Code Sec.  
          15403(c).)

           Existing law  , except as otherwise provided, prohibits transfer  
          of a beneficiary's interest in income under the trust if the  
          trust instrument provides that a beneficiary's interest income  
          is not subject to voluntary or involuntary transfer, and  
          provides that the beneficiary's interest in income is not  
          subject to enforcement of a money judgment until paid to the  
          beneficiary. (Prob. Code Sec. 15300.)

           Existing law  , if the settlor and all beneficiaries of an  
          irrevocable trust consent, authorizes them to compel the  
          modification or termination of the trust.  (Prob. Code Sec.  
          15404(a).)  However, if any beneficiary does not consent to the  
          modification or termination of the trust, existing law  
          authorizes the other beneficiaries, with the consent of the  
          settlor, to petition the court to compel a modification or a  
          partial termination of the trust if the interests of the  
          beneficiaries who do not consent are not substantially impaired.  
           (Prob. Code Sec. 15404(b).)

           Existing law  , if the trust provides for the disposition of  
          principal to a class of persons described only as "heirs" or  
          "next of kin" of the settlor, or using other words that describe  
          the class of all persons who would take under the rules of  
          intestacy, authorizes the court to limit the class of  
          beneficiaries whose consent is needed to compel the modification  
          or termination of the trust to the beneficiaries who are  
          reasonably likely to take under the circumstances.  (Prob. Code  
          Sec. 15404(c).)

           Existing law  , with respect to beneficiary consent to those  
          petitions to compel modification or termination of the trust,  
          provides that the consent of a beneficiary who lacks legal  
          capacity, including a minor, or who is an unascertained or  
          unborn person may be given in proceedings before the court by a  
          guardian ad litem, if it would be appropriate to do so.  (Prob.  
          Code Sec. 15404.)  In determining whether to give consent,  
          existing law authorizes the guardian ad litem of the minor to  
          rely on general family benefit accruing to living members of the  
          beneficiary's family as a basis for approving a modification or  
          termination of the trust.  (Prob. Code Sec. 15404.)









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           Existing law  provides that the presumption of fertility is  
          rebuttable in determining the class of beneficiaries whose  
          consent is necessary to modify or terminate the trust.  (Prob.  
          Code Sec. 15406.)

           This bill  would clarify that if all beneficiaries of an  
          irrevocable trust consent, they may petition the court for  
          modification or termination of the trust.
           
          This bill  would strike the prohibition of the court's discretion  
          to permit termination of a trust subject to a valid restraint on  
          the transfer of a beneficiary's interest, and, instead, require  
          a court, in making a determination with respect to a proposed  
          termination of an irrevocable trust, to consider whether the  
          trust is subject to a valid restraint on the transfer of a  
          beneficiary's interest, as specified. 

           This bill  would clarify that an irrevocable trust may be  
          modified or terminated by the written consent of the settlor and  
          all beneficiaries without court approval of the modification or  
          termination.

           This bill  would clarify that if any beneficiary does not consent  
          to the modification or termination of an irrevocable trust, with  
          the consent of the settlor, the court may modify or partially  
          terminate the trust if the interests of the beneficiaries who do  
          not consent are not substantially impaired.

           This bill  would clarify that a court may limit the class of  
          beneficiaries whose consent is necessary to modify or terminate  
          a trust to the beneficiaries who are reasonably likely to take  
          under the circumstances.

                                        COMMENT
           
          1.  Stated need for the bill 
          
          The author writes:
          
            Certain flaws in the existing statutes governing modification  
            and termination of trusts ([Probate Code S]ection 15400 et  
            seq.) may be summarized as follows:

            [Probate Code] Section[s] 15403 and 15404 both use the word  








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            "compel," which results in a lack of clarity in those  
            sections.  While the word "compel" typically connotes someone  
            or something being forced or required to do something, that is  
            not what is occurring under either section 15403 or 15404. . .  
            .  The statutes should be clarified with respect to their  
            confusing use of the term "compel."

            Under current law, a court is precluded from terminating a  
            trust under section 15403 (where all beneficiaries of an  
            irrevocable trust consent) if the trust is subject to a valid  
            restraint on transfer of the beneficiary's interest as  
            provided in Chapter 2 of the Probate Code, i.e., a  
            "spendthrift provision." In modern trust drafting, spendthrift  
            provisions are ubiquitous and, as a result, section 15403  
            largely precludes their termination.  Courts should not be  
             precluded  from terminating a trust containing a spendthrift  
            provision; rather, courts should be given the discretion,  
            after giving due consideration to the spendthrift provision,  
            to terminate a trust containing a spendthrift provision under  
            appropriate circumstances.  [Emphasis in original.]

            With respect to modification or termination under section  
            15403 (with the consent of all beneficiaries), there is no  
            provision allowing the court to limit the class of  
            beneficiaries whose consent is required.  With respect to  
            modification or termination under section 15404 (with the  
            consent of the settlor and all beneficiaries), section  
            15404(c) authorizes the court to limit the class of  
            beneficiaries whose consent is required to the beneficiaries  
            who are reasonably likely to take under the circumstances.   
            The rationale for this inconsistency is unclear, as the court  
            seemingly should have the ability to limit the class of  
            beneficiaries whose consent is required under both  
            circumstances.

          2.  Spendthrift provisions  

          A spendthrift provision in a trust may be used by the settlor to  
          control how much a beneficiary will receive and when.  Common  
          reasons to use a spendthrift provision include that the  
          beneficiary is a poor money manager, has a gambling or substance  
          addiction, or is an easy target for individuals who may use the  
          beneficiary for his or her money.  A spendthrift provision also  
          makes the beneficiary's inheritance in the trust unreachable by  








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          the beneficiary's creditors until the money or assets are  
          distributed to the beneficiary.  As such, the spendthrift  
          provision is a restraint on the transfer of the inheritance to  
          the beneficiary.
          Existing law provides that the court does not have discretion to  
          permit termination of a trust that is subject to a valid  
          restraint on the transfer of the beneficiary's interest  
          (spendthrift provision).  (Prob. Code Sec. 15403(b).)  This bill  
          would strike that provision and, instead, require the court, in  
          making a determination with respect to a proposed termination of  
          an irrevocable trust pursuant to a beneficiary's petition, to  
          consider whether the trust is subject to a spendthrift  
          provision.

          TEXCOM asserts that there is limited availability of the  
          procedure afforded by Probate Code Section 15403 because of the  
          prohibition on termination by a court of a trust that is subject  
          to a valid restraint on transfer of the beneficiary's interest.  
          According to TEXCOM, "[u]nder current law, a court is precluded  
          from terminating a trust under [S]ection 15403 (where all  
          beneficiaries of an irrevocable trust consent) if the trust is  
          subject to a valid restraint on transfer of the beneficiary's  
          interest as provided in Chapter 2 of the Probate Code, i.e., a  
          'spendthrift provision.'  In modern trust drafting, spendthrift  
          provisions are ubiquitous and, as a result, [S]ection 15403  
          largely precludes their termination.  Courts should not be  
          precluded from terminating a trust containing a spendthrift  
          provision; rather, courts should be given the discretion, after  
          giving due consideration to the spendthrift provision, to  
          terminate a trust containing a spendthrift provision under  
          appropriate circumstances."

          According to the California Law Revision Commission, Probate  
          Code Section 15403(b) "gives the court some discretion in  
          applying the material purposes doctrine, except in situations  
          where transfer of the beneficiary's interest is restrained, such  
          as by a spendthrift provision.  See Section 15300 (restraint on  
          transfer of beneficiary's interest).  Section 15403 permits  
          termination of an irrevocable trust with the consent of all  
          beneficiaries where the trust provides for successive  
          beneficiaries or postpones enjoyment of a beneficiary's  
          interest.  The discretionary power provided in subdivision (b)  
          also represents a change in the prior California case-law rule.   
          [Citation.]  Section 15403 is intended to provide some degree of  








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          flexibility in applying the material purposes doctrine in  
          situations where transfer of the beneficiary's interest is not  
          restrained."  (Recommendation Proposing New Probate Code, 20  
          Cal. L. Revision Comm'n Reports (1990) 1001, 1876.)  Under this  
          statute, a court must determine the purpose or purposes of a  
          trust and which purposes are material.  This provision, while  
          allowing the court some latitude on modifying or terminating the  
          trust, reiterates the preference to continue the settlor's  
          purpose for creating the trust.

          With respect to spendthrift provisions, the doctrine that  
          property may be made inalienable by such declaration of a  
          spendthrift provision rests upon the theory that a donor has the  
          right to give his property to another upon any conditions which  
          he sees fit to impose, and that, inasmuch as such a gift takes  
          nothing from the prior or subsequent creditors of the  
          beneficiary to which they previously had the right to look for  
          payment, they cannot complain that the donor has provided that  
          the property or income shall go or be paid personally to the  
          beneficiary and shall not be subject to the claims of creditors.  
           (Parscal v. Parscal (1983) 148 Cal.App.3d 1098, 1102-1103.)   
          The validity of a spendthrift provision in a trust is predicated  
          upon the consideration that a person is free to make any desired  
          disposition of his property.  (Ibid.)

          If the settlor includes a spendthrift provision in the trust  
          because he or she believes the beneficiaries do not manage money  
          well, the settlor's purpose should not be disregarded in favor  
          of the beneficiaries' wants or pursuant to the court's opinion.   
          If the settlor wanted the beneficiaries to have the money  
          sooner, there would not be a spendthrift provision.  On the  
          other hand, if circumstances change and the settlor's purpose  
          for establishing the trust cannot be effectuated, the court has  
          the ability to modify the trust after determining that the  
          reason for doing so under the circumstances outweighs the  
          interest in accomplishing a material purpose of the trust.  This  
          bill, by providing that the court has to consider whether the  
          trust contains a spendthrift provision when making a  
          determination on a proposed termination of an irrevocable trust,  
          would maintain the presumption in favor of the settlor's intent  
          in creating the spendthrift provision.

          3.  Doctrine of worthier title
           








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          Existing law, when modifying or terminating an irrevocable trust  
          with the consent of the settlor and beneficiaries, provides a  
          path to modification or partial termination of a trust if the  
          interests of the beneficiaries who do not consent are not  
          substantially impaired.  (Prob. Code Sec. 15404(b).)  Existing  
          law allows the court to limit the class of beneficiaries whose  
          consent is needed to compel the modification or termination to  
          the beneficiaries who are reasonably likely to take under the  
          circumstances.  (Prob. Code Sec. 15404(c).)  Similarly, this  
          bill would authorize the court to limit the class of  
          beneficiaries whose consent is necessary to modify or terminate  
          a trust when the consent of the settlor is unavailable.

          TEXCOM contends that Probate Code Sections 15403 and 15404  
          should be harmonized and remove the current inconsistency  
          regarding the class of beneficiaries.  Further, TEXCOM argues  
          that there is a lack of discretion afforded to the court to  
          limit, where appropriate, the class of beneficiaries whose  
          consent is necessary to modify or terminate a trust.  TEXCOM  
          notes that relative to trusts, the Probate Code defines  
          "beneficiary" to mean a person to whom a donative transfer of  
          property is made or that person's successor in interest,  
          including a person who has any present or future interest,  
          vested or contingent.  (Prob. Code Section 86.)  TEXCOM contends  
          that the result of this definition is that the class of persons  
          required to consent to a modification or termination of a trust  
          is very broad, and frequently includes beneficiaries who are  
          unborn or unascertainable.  Further, TEXCOM notes that included  
          within this definition of "beneficiary" are persons whose  
          interests in the trust are extremely remote, e.g., where the  
          likelihood of their actually taking under the instrument is very  
          low.  TEXCOM asserts that "[c]urrent law is somewhat  
          inconsistent regarding the ability of the court to limit the  
          class of beneficiaries whose consent is needed to modify or  
          terminate a trust: 
             a.   With respect to modification or termination under  
               [S]ection 15403 (with the consent of all beneficiaries),  
               there is no provision allowing the court to limit the class  
               of beneficiaries whose consent is required. 
             b.   With respect to modification or termination under  
               [S]ection 15404 (with the consent of the settlor and all  
               beneficiaries), [S]ection 15404(c) authorizes the court to  
               limit the class of beneficiaries whose consent is required  
               to the beneficiaries who are reasonably likely to take  








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               under the circumstances. 

          TEXCOM asserts that the rationale for this inconsistency is  
          unclear, as the court seemingly should have the ability to limit  
          the class of beneficiaries whose consent is required under both  
          circumstances. 

          According to the California Law Revision Commission, Probate  
          Code Section 15404(c) reinstates a limited form of the doctrine  
          of worthier title, which was abolished in California in 1959.   
          (See 1959 Cal. Stat. ch. 122; see also Recommendation and Study  
          Relating to The Doctrine of Worthier Title, 2 Cal. L. Revision  
          Comm'n Reports D-1 (1959). "Under subdivision (c), the need to  
          obtain the consent of persons constituting the class of heirs or  
          next of kin of the settlor may be excused by the court as to  
          beneficiaries (typically unborn or remote beneficiaries) who are  
          not reasonably likely to take principal under the trust.  This  
          limitation protects the interests of beneficiaries who are  
          likely to take while permitting the settlor to modify or  
          terminate an otherwise irrevocable trust in line with the  
          probable intent of the settlor."  (Recommendation Proposing New  
          Probate Code, 20 Cal. L. Revision Comm'n Reports (1990) 1001,  
          1877.)

          In keeping with this limited form of the doctrine of worthier  
          title, this bill would harmonize the two situations where the  
          beneficiaries may ask the court to modify or terminate the trust  
          by adding the class limitation authorization currently under  
          Probate Code Section 15404 to Probate Code Section 15403.

          4.  Clarifying method for requesting modification or termination  
            of irrevocable trust  

          Existing law requires that if all beneficiaries consent to a  
          modification or termination of the trust, they can compel  
          modification or termination upon petition to the court.  (Prob.  
          Code Sec. 15403(a).)  This bill would clarify that if all the  
          beneficiaries of an irrevocable trust consent, they may petition  
          the court for modification or termination of the trust.  This  
          bill would also make other conforming revisions.

          The Executive Committee of the Trusts & Estates Section of the  
          State Bar of California (TEXCOM), sponsor, argues that existing  
          Probate Code Section 15403 provides that, if all beneficiaries  








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          of an irrevocable trust consent, "they may compel modification  
          or termination of the trust upon petition to the court."  TEXCOM  
          asserts that it is not clear who or what is being compelled in  
          this context.  According to TEXCOM, what is actually occurring  
          under this provision is that the beneficiaries are requesting  
          that the court modify or terminate a trust."  TEXCOM asserts  
          that this same problem exists for situations where the settlor  
          and beneficiaries are modifying or terminating a trust by their  
          mutual agreement.  Accordingly, TEXCOM contends that the  
          statutes should be clarified with respect to their confusing use  
          of the term "compel."  Staff notes that these statutes were  
          modeled after Sections 337 and 338 of the Restatement (Second)  
          of Trusts (1957).

          5.  Clarifying modification or termination of trust pursuant to  
            consent of settlor and beneficiaries
          
          Existing law provides that if the settlor and all beneficiaries  
          of a trust consent, they may compel the modification or  
          termination of the trust.  (Prob. Code Sec. 15404.)  This bill  
          would authorize the settlor and beneficiaries to modify or  
          terminate the trust without a court order.  

          According to the California Law Revision Commission, a trust may  
          be modified or terminated pursuant to Probate Code Section 15404  
          without court approval.  (Recommendation Proposing New Probate  
          Code, 20 Cal. L. Revision Comm'n Reports (1990) 1001, 1877.)   
          Since the reasoning behind the ability of the settlor and  
          beneficiaries to compel modification or termination of the trust  
          does not contemplate the necessity for judicial review, this  
                    provision of the bill is arguably an appropriate clarification  
          of the law.


           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Executive Committee of the Trusts and Estates Section  
          of the State Bar of California

           Related Pending Legislation  :  AB 1855 (Bonta, 2016) would enact  








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          the Uniform Trust Decanting Act, under which a fiduciary of an  
          irrevocable trust may distribute the property of a first trust  
          to one or more 2nd trust or modify the terms of the first trust  
          without the consent of the beneficiaries or approval of the  
          court, subject to certain exceptions.  AB 1855 is in the  
          Assembly Judiciary Committee.

           Prior Legislation  :

          Ab 1683 (Hagman, Chapter 55, Statutes of 2012) provided that the  
          power of a person other than the settlor to revoke a trust  
          applies to all or a portion of the trust contributed by the  
          settlor, regardless of whether the settlor's portion was  
          separate or community property, and regardless of whether the  
          power to revoke is exercisable during the lifetime of the  
          settlor or continues after the settlor's death, or both.  

          SB 202 (Harman, Chapter 621, Statutes of 2010), among other  
          things, raised the amount from $20,000 to $40,000 at which a  
          trustee could terminate a trust without a court order, and  
          clarified trustee reporting requirements, beneficiary waivers to  
          an account, and the effect of late service of the notification  
          by trustee.

          AB 2652 (McAlister, Chapter 820, Statutes of 1986), among other  
          things, authorized trustees to terminate trusts valued at  
          $20,000 or less without court approval.  AB 2652 also  
          reorganized and consolidated numerous provisions of the Probate  
          Code regarding trustee account, reporting, and notice duties to  
          beneficiaries.

          AB 759 (Friedman, Ch. 79, Stats. 1990) revised and recast the  
          Probate Code and, among other things, continued the trust  
          modification and termination provisions under prior law.

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