Modifying Irrevocable Trusts Using Nonjudicial Settlement Agreements

Structuring NJSA Wrappers, Relocating Trust Situs, Resolving Disputes, Remedying Trust Construction Issues

A live 90-minute CLE/CPE webinar with interactive Q&A


Tuesday, September 19, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, August 25, 2017


This CLE/CPE webinar will provide estate planners with a thorough, comprehensive and practical guide to structuring nonjudicial settlement agreements (NJSAs) as a tool for modifying irrevocable trusts in states that have adopted the Uniform Probate Code or have NJSA statutes. The panel will discuss what modifications these settlement agreements can and cannot implement and will offer useful guidance to properly structure NJSA “wrapper” provisions that will withstand IRS scrutiny.

Description

A powerful tool for amending or repairing irrevocable trusts is the binding NJSA. Most irrevocable trusts do not provide for the amending of trust terms except in instances where modification is necessary to comply with the tax code or other specified laws. However, there are two methods for repairing irrevocable trusts which most states recognize; one is decanting and the other is the binding NJSA.

An NJSA is exactly as it describes: an agreement among “interested persons” to make alterations to an irrevocable trust. Interested persons are generally defined as any person whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court.

Depending on state law provisions, the trust terms that may be modified by an NJSA are limited only by the restriction that the modification may not violate any material purpose of the trust, and would be approved by a court if reviewed.

While versatile and powerful tools for modifying irrevocable trusts, NJSAs also contain risks. Estate planning counsel should have a thorough understanding of critical drafting practices to avoid serious and costly consequences.

Listen as our experienced panel provides a comprehensive and practical guide to using NJSAs to modify irrevocable trusts, including strategic tips and drafting tools.

Outline

  1. Amending an irrevocable trust
  2. Uniform Trust Code provisions
    1. Determination of “interested person”
    2. Prohibition against modifying “material provision” of trust
    3. What terms may be modified by binding NJSAs
  3. Other NJSA statutory provisions and variances from UTC model
  4. Using an NJSA to relocate a trust situs
  5. Obtaining court approval of NJSAs
  6. Structuring NJSA “wrapper” provisions

Benefits

The panel will review these and other key issues:

  • What trust provisions may be amended by NJSAs in states that have adopted the Uniform Trust Code?
  • What other states have statutes or trust code provisions allowing for NJSAs and how do they differ from the UTC provisions?
  • How to structure an NJSA “wrapper”
  • What are the tax consequences of making trust changes through an NJSA?
  • When would it be desirable to have a court ratify terms agreed to in an NJSA?

Learning Objectives

After completing this course, you will be able to:

  • Identify the states and jurisdictions that allow NJSAs to make alterations to irrevocable trusts
  • Verify trust provisions that may be altered by an NJSA, both in Uniform Trust Code (UTC) states and in other states that have not adopted the UTC but have statutes allowing NJSAs
  • Recognize situations in which it may be appropriate to have an NJSA reviewed or approved by a court
  • Decide when to use an NJSA to relocate the situs of an irrevocable trust
  • Indicate the key elements of an NJSA “wrapper” provision

Faculty

Lauren Evans DeJong, Of Counsel
Stahl Cowen Crowley Addis, Chicago

Ms. DeJong counsels individuals with regard to estate planning, estate and trust administration, asset protection and tax and business planning. She works with individuals and their families in areas related to transferring and preserving wealth, business succession, planning for disability, special needs and health care coverage. She also represents clients in connection with probate, trust and guardianship proceedings and before the U.S. Tax Court with regard to federal tax matters. In the corporate arena, she counsels closely held businesses and start-ups in the areas of entity formation, organizational and strategic planning, and contract drafting.

Alissa B. Gorman, J.D., LL.M. (Taxation), Shareholder
McAndrews Law Offices, Berwyn, Pa.

Ms. Gorman's practice is focused on estate planning, estate administration, guardianship, elder law planning, special needs and disability planning, and special needs trusts. She assists families with the preparation of various trust agreements, including Special Needs Trusts, Settlement Preservation Trusts, and Minor’s Trusts. Her work in estate planning includes the preparation of wills, trusts, powers of attorney and advance medical directives, and she is experienced in wealth planning techniques designed to minimize Federal estate and gift tax implications.  

Miguel D. Pena, Esq.
The Law Office of Denise D. Nordheimer, Wilmington, Del.

Mr. Pena focuses his practice on trusts and estates, probate, wealth preservation, and planning matters involving estate, gift, and generation-skipping transfer taxes. He represents a variety of clients including high-net worth individuals seeking sophisticated estate planning, as well as individuals who simply want to insure that their estate reflects their wishes and values. In addition, he represents corporate fiduciaries in connection with estate and trust administration and advises out of state counsel on Delaware trust law, including directed trusts, decanting, dynasty trusts, and all aspects of the validity, construction, and administration of Delaware trusts. 


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This program is eligible for 1.5 CPE credits.

  • Field of Study: Taxes.
  • Level of Knowledge: Intermediate.
  • Advance Preparation: None.
  • Teaching Method: Seminar/Lecture.
  • Delivery Method: Group-Internet (via computer).
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  • Prerequisite: Three years+ business or public firm experience at mid-level within the organization, drafting wills and trust documents, supervising other attorneys or estate planners. Specific knowledge and understanding of irrevocable trusts and various state rules governing trust amendment. Familiarity with the Uniform Trust Code, decanting rules and restrictions on amending irrevocable trusts.

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