§ 19–1306.01. Capacity of settlor of revocable trust.
The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
Uniform Law: This section is based upon § 601 of the Uniform Trust Code.
§ 19–1306.02. Revocation or amendment of revocable trust.
(a) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the effective date of this chapter [March 10, 2004].
(b) If a revocable trust is created or funded by more than one settlor:
(1) To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor’s contribution; and
(3) Upon the revocation or amendment of the trust by fewer than all of the settlers, the trustee shall promptly notify the other settlers of the revocation or amendment.
(c) The settlor may revoke or amend a revocable trust:
(1) By substantial compliance with a method provided in the terms of the trust; or
(2) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by.
(A) A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
(B) Any other method manifesting clear and convincing evidence of the settlor’s intent.
(d) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
(e) A settlor’s powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.
(f) A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.
(g) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor’s successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
Uniform Law: This section is based upon § 602 of the Uniform Trust Code.
§ 19–1306.03. Settlor’s powers; powers of withdrawal.
(a) While a trust is revocable, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
(b) While a trust is not revocable, for so long as a person has a currently exercisable power of withdrawal over the entire principal of the trust, the duties of a trustee are owed exclusively to such person.
(c) While a trust is revocable and a settlor does not have the capacity to revoke the trust, a beneficiary shall have the right to enforce the settlor’s intent to benefit the beneficiary during the settlor’s incapacity.
Uniform Law: This section is based upon § 603 of the Uniform Trust Code.
§ 19–1306.04. Limitation on action contesting validity of revocable trust; distribution of trust property.
(a) A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor’s death within the earliest of:
(1) One year after the settlor’s death;
(2) Ninety days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding; or
(3) Six months after the date of the first publication of notice of the trust’s existence, the name and address of each trustee and of the settlor, and the time allowed for commencing a proceeding, in the same manner as required for publication of notice of appointment of a personal representative, if the trustee sends a copy of the text of such notice, not later than 15 days after the date of its first publication, to each qualified beneficiary of the trust, heir of the decedent, and other person who would be an interested person within the meaning of section 20-101(d) if the trust were a will and who would have been required to be sent notice of the appointment of a personal representative under section 20-704 if a personal representative had been appointed.
(b) Upon the death of the settlor of a trust that was revocable at the settlor’s death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
(1) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or
(2) A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent the notification.
(c) A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.
Uniform Law: This section is based upon § 604 of the Uniform Trust Code.