§ 564-B:4-419 — Trustee's Power of Modification

(a) Subject to the limitations provided in this section, a trustee may modify a trust. A trustee may exercise that power of modification for any reason, including:
(1) furthering the settlor's intent or a material purpose of the trust;
(2) preserving any favorable tax treatment for the trust, the settlor, or the beneficiaries;
(3) enhancing the efficient administration of the trust; or
(4) minimizing the costs of administration.
(b) A trustee's power under this section is a power with respect to an administrative matter of the trust.
(c) A trustee shall not modify a trust to that extent that:
(1) the terms of the trust expressly prohibit the trustee's modification of the trust;
(2) the modification is inconsistent with the settlor's intent or a material purpose of the trust;
(3) the modification expands, restricts, eliminates, or otherwise alters any right or power that the settlor has under this chapter or the terms of the trust;
(4) the modification adds a beneficiary, unless the modification is expressly permitted under the terms of the trust;
(5) the modification reduces or eliminates a beneficiary's vested interest in the trust;
(6) the modification reduces or eliminates a beneficiary's interest in the trust (other than a vested interest), unless the modification is consistent with the settlor's intent as clearly expressed under the terms of the trust;
(7) the modification adds a power of withdrawal or a power of appointment, unless the modification is consistent with the settlor's intent as clearly expressed under the terms of the trust;
(8) the modification reduces or eliminates a currently-exercisable power of appointment held by any person other than a beneficiary, unless the modification is consistent with the settlor's intent as clearly expressed under the terms of the trust; or
(9) the modification modifies any of the dispositive terms of a charitable trust, unless the director of charitable trusts consents to the modification.
(d) If the trust or a transfer to the trust qualified for a deduction, credit, exclusion, or exemption for purposes of any income, gift, estate, or other tax, then a trustee may modify a trust only to that extent that the modification would not jeopardize that deduction, credit, exclusion, or exemption.
(e) If a settlor of the trust or a beneficiary of the trust is an applicant for public benefits or receives public benefits and the settlor's or beneficiary's eligibility or qualification for those public benefits is dependent on the nature and scope of his or her rights, powers, and interests in the trust, then a trustee may modify the trust only to the extent that the modification would not jeopardize the settlor's or beneficiary's eligibility or qualification for those public benefits.
(f) A trustee does not have the power of modification under this section if the trustee is any of the following persons, either before or after the modification: (1) the settlor; (2) a beneficiary of the trust; (3) a person who, with respect to the settlor or a beneficiary of the trust, is a related or subordinate party within the meaning of section 672(c) of the Internal Revenue Code; or (4) a trustee whom any one or more of the settlor and the beneficiaries can remove if the persons exercising the removal power can appoint as a successor trustee (i) the settlor, (ii) a beneficiary of the trust, or (iii) a person who, with respect to the settlor or a beneficiary of the trust, is a related or subordinate party within the meaning of section 672(c) of the Internal Revenue Code.
(g) A trustee is not prohibited from exercising the power of modification, and the exercise of that power is not inconsistent with the settlor's intent, solely because:
(1) the trust is irrevocable;
(2) the terms of the trust provide that the trust may not be amended by the settlor; or
(3) the trust contains a spendthrift provision.
(h) A trustee of a charitable trust or a trust in which a charitable organization has a vested interest shall notify the director of charitable trusts of a proposed modification under this section, and the trustee shall provide that notice in writing at least 30 days before the effective date of that modification. A trustee of a noncharitable trust may notify a beneficiary of a proposed modification under this section, but does not have any duty to do so. The right of any beneficiary to object to a proposed modification terminates if the beneficiary does not notify the trustee of an objection within 60 days after the proposal was sent to the beneficiary but only if the proposal informed the beneficiary of the right to object and the time allowed for objection.
(i) A trustee's power of modification under this section may be expanded, restricted, eliminated, or otherwise altered by the terms of the trust. A nonjudicial settlement agreement made in accordance with RSA 564-B:1-111, however, may only restrict or eliminate a trustee's power of modification under this section. Except as otherwise provided under the terms of the trust, a trustee's power of modification under this section is in addition to any other powers conferred by the terms of the trust, this chapter, or the laws of this state. This section does not expand, restrict, eliminate, or otherwise alter any power that, with respect to a trust, a person holds in a nonfiduciary capacity.
(j) A trustee does not have a duty to modify a trust or an ongoing duty to consider whether to modify a trust. In exercising the power of modification under this section, a trustee has a duty to exercise the power in a manner that is consistent with the settlor's intent as expressed in the terms of the trust, and the trustee shall act in accordance with the trustee's duties under this chapter and the terms of the trust.
(k) A trustee may exercise the power of modification under this section without court approval, the consent of the settlor, or the consent of any of the beneficiaries of the trust. A trustee or any other interested person may ask a court to approve a trustee's exercise of the power of modification.
(l) For purposes of this section, "vested interest" means a vested interest as defined in RSA 564-B:4-418(g).

Legislative History

2014, 195:17, eff. July 1, 2014.