BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       SB 1158|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                      CONSENT 


          Bill No:  SB 1158
          Author:   Anderson (R) 
          Amended:  4/25/16  
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  6-0, 5/3/16
           AYES:  Jackson, Moorlach, Anderson, Leno, Monning, Wieckowski
           NO VOTE RECORDED:  Hertzberg

           SUBJECT:   Trusts:  modification or termination


          SOURCE:    Author

          DIGEST:   This bill establishes 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 also clarifies that in making a  
          determination with respect to a proposed termination of an  
          irrevocable trust pursuant to a beneficiary's petition, the  
          court must consider whether the trust is subject to a  
          spendthrift provision. This bill also makes other clarifying  
          changes.

          ANALYSIS: 


          Existing law:


          1)Provides that, unless a trust is expressly made irrevocable by  
            the trust instrument, the trust is revocable by the settlor. 


          2)Provides that if all beneficiaries of an irrevocable trust  








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            consent, they may compel modification or termination of the  
            trust upon petition to the court.  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.


          3)Prohibits the court from permitting termination of the trust  
            that is subject to a valid restraint on transfer of the  
            beneficiary's interest, as specified. 


          4)Prohibits, except as otherwise provided, 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.  



          5)Authorizes the settlor and all beneficiaries of an irrevocable  
            trust to compel the modification or termination of an  
            irrevocable trust if the settlor and all beneficiaries of an  
            irrevocable trust consent.  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. 


          6)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 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  








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            under the rules of intestacy. 


          7)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, with  
            respect to beneficiary consent to those petitions to compel  
            modification or termination of the trust.  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. 


          8)Provides that the presumption of fertility is rebuttable in  
            determining the class of beneficiaries whose consent is  
            necessary to modify or terminate the trust. 


          This bill:


          1)Clarifies that if all beneficiaries of an irrevocable trust  
            consent, they may petition the court for modification or  
            termination of the trust.


          2)Strikes 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. 


          3)Clarifies 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.








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          4)Clarifies 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.


          5)Clarifies 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.


          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  
          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 revises these procedures.










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          Comments


          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  
            "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  








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            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.


          A spendthrift provision in a trust may be used by the settlor to  
          control how much a beneficiary will receive and when.  A  
          spendthrift provision also makes the beneficiary's inheritance  
          in the trust unreachable by the beneficiary's creditors until  
          the money or assets are distributed to the beneficiary.   
          Existing law provides that the court does not have discretion to  
          permit termination of a trust that is subject to a spendthrift  
          provision.  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.  


          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,  
          maintains the presumption in favor of the settlor's intent in  
          creating the spendthrift provision. 


          Related/Prior Legislation


          AB 1855 (Bonta, 2016) enacts 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 second 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.


          AB 1683 (Hagman, Chapter 55, Statutes of 2012) provided that the  
          power of a person other than the settlor to revoke a trust  








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          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, Chapter 79, Statutes of 1990) revised and  
          recast the Probate Code and, among other things, continued the  
          trust modification and termination provisions under prior law.




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified5/5/16)


           Executive Committee of the Trusts and Estates Section of the  
            State Bar of California


          OPPOSITION:   (Verified5/5/16)








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          None received

          Prepared by:Margie Estrada / JUD. / (916) 651-4113
          5/6/16 14:26:29


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