(1) An 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. The Attorney General must consent to any modification or termination of a charitable trust, unless contingencies make the charitable interest negligible. A settlor’s power to consent to a trust’s modification or termination may be exercised by:
(a) An agent or attorney-in-fact under a power of attorney only to the extent expressly authorized by the terms of the trust;
(b) The settlor’s conservator with the approval of the court supervising the conservatorship if an agent or attorney-in-fact is not authorized by the terms of the trust; or
(c) The settlor’s guardian with the approval of the court supervising the guardianship if an agent or attorney-in-fact is not authorized by the terms of the trust and a conservator has not been appointed.
(2) An irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. An irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that the modification is not inconsistent with a material purpose of the trust. The Attorney General must consent to any modification or termination of a charitable trust, unless contingencies make the charitable interest negligible.
(3) For the purposes of subsections (1) and (2) of this section, a spendthrift provision in the terms of the trust is rebuttably presumed to constitute a material purpose of the trust.
(4) Upon termination of a trust under subsection (1) or (2) of this section, the trustee shall distribute the trust property as agreed to by the beneficiaries and, in the case of a charitable trust requiring the Attorney General’s consent, as agreed to by the Attorney General.
(5) If all of the required parties do not consent to a proposed modification or termination of the trust under subsection (1) or (2) of this section, the modification or termination may be approved by the court if the court finds that:
(a) If all of the required parties had consented, the trust could have been modified or terminated under this section; and
(b) The interests of any beneficiary who does not consent will be adequately protected.
(6)(a) A trustee, or any other person interested in the trust, may file an agreement entered into under subsection (1) or (2) of this section, or a memorandum summarizing the provisions of the agreement, with the circuit court for any county where trust assets are located or where the trustee administers the trust.
(b) After collecting the fee provided for in subsection (8)(a) of this section, the clerk shall enter the agreement or memorandum of record in the court’s register.
(c) Within five days after the filing of an agreement or memorandum under this subsection, the person making the filing must serve a notice of the filing and a copy of the agreement or memorandum on each person interested in the trust whose address is known at the time of the filing. Service may be made personally, or by registered or certified mail, return receipt requested. The notice of filing shall be substantially in the following form:
______________________________________________________________________________
CAPTION OF CASENOTICE OF FILING
OF AGREEMENT OR
MEMORANDUM OF
AGREEMENT
You are hereby notified that the attached document was filed by the undersigned in the above entitled court on the _____ day of ______, ___. Unless you file objections to the agreement within 120 days after that date, the agreement will be approved and will be binding on all persons interested in the trust.
If you file objections within the 120-day period, the court will fix a time and place for a hearing. At least 10 days before the date of that hearing, you must serve a copy of your objections and give notice of the time and place of the hearing to all persons interested in the trust. See ORS 130.200.
_____________________
Signature
______________________________________________________________________________
(d) Proof of mailing of the notices required under this subsection must be filed with the court. Proof of service may be made by a certificate of service in the form provided by ORCP 7 F, by a signed acceptance of service or by a return receipt from the postal authorities.
(e) If no objections are filed with the court within 120 days after the filing of the agreement or memorandum, the agreement is effective and binding on all persons interested in the trust.
(7)(a) If objections are filed with the court within 120 days after the filing of an agreement or memorandum under this section, the clerk of the court shall collect the fee provided in subsection (8)(a) of this section. Upon the filing of objections, the court shall fix a time and place for a hearing. The person filing the objections must serve a copy of the objections on all persons interested in the trust and give notice to those persons of the time and place fixed by the court for a hearing. Service must be made at least 10 days before the date set by the court for the hearing. Service of the objections may be made personally or by registered or certified mail, return receipt requested.
(b) Proof of mailing of objections must be filed with the court. Proof of service may be made by a certificate of service in the form provided by ORCP 7 F, by a signed acceptance of service or by a return receipt from the postal authorities.
(c) The court shall approve an agreement entered into under subsection (1) or (2) of this section after a hearing upon objections filed under this subsection unless:
(A) The agreement does not reflect the signatures of all persons required by subsection (1) or (2) of this section;
(B) The agreement is not authorized by subsection (1) or (2) of this section; or
(C) Approval of the agreement would not be equitable.
(d) An agreement approved by the court after a hearing is binding on all persons interested in the trust.
(e) Persons interested in the trust may waive the notice required under subsection (6) of this section. If all persons interested in the trust waive the notice, the agreement is effective and binding on all persons interested in the trust upon filing of the agreement or memorandum with the court.
(8)(a) The clerk of the circuit court shall collect in advance a fee of $65 for the filing of an agreement or memorandum of agreement under subsection (6) of this section, and a fee of $32.50 for the filing of objections under subsection (7) of this section.
(b) In addition to the filing fees provided for in paragraph (a) of this subsection, the clerk shall charge and collect in proceedings under this section all additional fees authorized by law for civil actions, suits or proceedings in circuit court.
(c) A pleading or other document is not considered filed unless the fees required by this subsection are paid. Filing fees may not be refunded to any party. [2005 c.348 §31; 2007 c.129 §21]
Note: Section 15 (20), chapter 860, Oregon Laws 2007, provides:
Sec. 15. (20) In addition to the fee provided for in ORS 130.200 (8)(a), for the period commencing September 1, 2007, and ending June 30, 2009, the clerk of the circuit court shall collect a surcharge of $3 for the filing of an agreement or memorandum of agreement under ORS 130.200 (6) and a surcharge of $2 for the filing of objections under ORS 130.200 (7). [2007 c.860 §15(20)]
Section: Previous 130.165 130.170 130.175 130.180 130.185 130.190 130.195 130.200 130.205 130.210 130.215 130.220 130.225 130.230 130.235 NextLast modified: August 7, 2008