11-1.11 Limited power of fiduciary to amend trust for certain tax
purposes
(a) Unless expressly prohibited by the terms of the instrument creating an express trust, the terms of the trust instrument shall be deemed to include the following provision granting the trustee, which term as defined in paragraph (h) of this section may mean the executor or administrator, a limited power to amend:
"The trustees shall have the limited power to amend the administrative and other provisions of the trust which have no significant dispositive effects within the meaning of paragraph (i) of this section on an interest described in such paragraph, by an acknowledged instrument in writing, in order to:
(i) achieve a qualified reformation of a reformable interest into a qualified interest for purposes of the charitable deduction as permitted by section 2055(e)(3) or 2522(c)(4) of the United States Internal Revenue Code ("Code") and the regulations thereto, or achieve a reformation of a charitable remainder trust permitted by section 664 of the Code and the regulations thereto;
(ii) meet the requirements of a qualified domestic trust for a surviving spouse who is not a citizen of the United States under sections 2056(d) and 2056A(a) of the Code and the regulations thereto; and
(iii) meet the requirements of a personal residence trust under section 2702(a)(3) or to meet the definition of a qualified interest under section 2702(b) of the Code, and the regulations thereto."
(b) (1) No trustee may exercise any power created under paragraph (a) of this section with respect to any trust that is exempt from tax imposed by the provisions of chapter 13 of the Code or has an inclusion ratio, as defined in section 2642(a) of the Code, of zero if the exercise of such power would cause such trust to lose in whole or in part its exemption from the tax imposed by the provisions of chapter 13 of the Code or cause such trust to have an inclusion ratio, as defined in section 2642(a) of the Code, of more than zero.
(2) If the creator of an express trust or a beneficiary (whether current, future or contingent) of income or principal of an express trust is serving as a trustee of the express trust, the creator or such beneficiary cannot participate in the exercise of the power to amend such express trust pursuant to this section. If two or more trustees are serving, the power to amend such express trust may be exercised by the trustees who are not so disqualified.
(c) Such amendment shall be embodied in one or more writings signed and acknowledged in the manner required by the laws of this state for the recording of a conveyance of real property by the trustee and filed in the office of the clerk of the court having jurisdiction over the instrument. At least thirty (30) days prior to such filing, notice of such amendment, together with a copy of the amendment, shall be sent by registered or certified mail, return receipt requested, or by personal delivery to all persons interested in the trust, or to the guardian of the property, committee, conservator, adult guardian, or personal representative of any such persons under a disability, or to the parent or person with whom a minor resides. Such notice shall include the following statement: "If you wish to object to the proposed amendment, you should notify the trustee (executor or administrator) of your objections in a writing signed and acknowledged by you before a notary in the manner required by the laws of the state of New York for the recording of a conveyance of real property. Such written objection must be personally delivered or mailed to the trustee (executor or administrator) by registered or certified mail, return receipt requested, within thirty (30) days of the date when the notice was personally delivered or mailed to you. If no such objection to the proposed amendment is made by any person interested in the trust, such amendment will become effective upon its filing in the court having jurisdiction over the trust." Proof by affidavit of such mailing or delivery of the notice or by signed acknowledgement of receipt by the person noticed, shall be filed in the office of the clerk of the court where such amendment is filed prior to or simultaneously with the filing of such amendment. If it appears by affidavit that the name or address of any person interested in the trust is unknown, mailing to such person of the notice shall not be required.
(d) Such amendment shall be effective upon filing as required by paragraph (c) of this section, provided that no written objection to such amendment, signed and acknowledged in the manner required by the laws of the state for the recording of a conveyance of real property by any person interested in the trust, has been received prior to such filing by the trustee, by personal delivery or by registered or certified mail, return receipt requested. If no such written objection has been received by the trustee prior to such filing, no judicial proceeding or consent of any person interested in the trust shall be required.
(e) Unless otherwise provided in the amendment, the amendment shall be deemed to have been effective in the case of a will as of the date of death of the decedent, and in the case of any other instrument on the date it became irrevocable.
(f) The limited power to amend granted by this section shall be exercised only if acted upon by all of the trustees, except as otherwise provided by subparagraph (b)(2) of this section.
(g) For the purposes of this section, the phrase "all persons interested in the trust" shall mean all the persons upon whom service of process would be required in a proceeding for the judicial settlement of the account of the trustee, taking into account section three hundred fifteen of the surrogate's court procedure act.
(h) In any case where the Code requires that an election or other action be made or taken by the executor or if no trustee of a trust under a will has qualified, the term "trustee" as used in this section shall mean the executor or administrator of an estate. In any such case, the trustee shall comply with any action taken by the executor or administrator under this section.
(i) An amendment pursuant to paragraph (a) of this section shall be conclusively deemed to have "no significant dispositive effect" if the difference between the actuarial value determined as of the effective date of the amendment
(i) of the interest reformed pursuant to subparagraph (a)(i) or (a)(ii) qualifying for the marital or charitable deduction which is involved in a reformation pursuant to subparagraph (a)(i) or (a)(ii); or
(ii) of the interest retained by the transferor or any applicable family member reformed pursuant to subparagraph (a)(iii) in order to qualify as a "personal residence trust" or a "qualified interest" under section 2702 of the Code; and the actuarial value of the respective interest prior to such amendment does not exceed five percent of the actuarial value of such pre-amendment interest.
(j) The term "trust" shall include an arrangement treated as a "trust" for the purposes of the Code.
(k) The fact that a testamentary trust cannot be revoked, altered or amended by reason of the testator's death, or that the will or trust instrument states that the trust is irrevocable and/or cannot be altered or amended, shall not be deemed to constitute an express prohibition within the meaning of the phrase "unless expressly prohibited by the terms of the instrument creating an express trust."
(l) References to sections of the United States Internal Revenue Code or Code shall refer to the United States Internal Revenue Code of 1986 as amended from time to time, or to corresponding provisions of subsequent internal revenue laws, and regulations thereto; and shall also refer to corresponding provisions of state law.
Last modified: February 3, 2019