15-7-402. ADDITIONAL POWERS. In addition to the powers provided for in section 15-7-401, Idaho Code, a trustee shall have the following powers:

(1) To sever any trust estate on a fractional share basis into two (2) or more separate trusts for any reason.

(2) To divide a trust into two (2) or more single trusts or consolidate two (2) or more trusts into a single trust, upon those terms and conditions as it considers appropriate, provided that the trustee make a written determination that: (a) division or consolidation is not inconsistent with the intent of the trustor with regard to any trust to be consolidated or divided; (b) division or consolidation would facilitate administration of the trusts; and (c) division or consolidation would be in the best interests of all beneficiaries and not materially impair their respective interests. The trustee shall give written notice of the proposed division or consolidation by personal service or by certified mail to all interested persons of every trust affected by the division or consolidation and to any trustee of such trust(s) who does not join in the notice. The notice shall: (i) state the name and mailing address of the trustee; (ii) include a copy of the governing instrument of each trust to be divided or consolidated; (iii) include a statement of assets and liabilities of each trust to be divided or consolidated, dated within ninety (90) days of the notice; (iv) fully describe the terms and manner of division or consolidation; and (v) state the reasons supporting the proposed division or consolidation. The notice shall advise the recipient of the right to petition for a judicial determination of the proposed division or consolidation as provided in subsection (3) of this section. The notice shall include a form on which consent or objection to the proposed division or consolidation may be indicated. If the trustee receives written consent to the proposed division or consolidation from all persons entitled to notice, the trustee may divide or consolidate the trusts as provided in the notice. Any person dealing with the trustee of the resulting divided or consolidated trust is entitled to rely on the authority of that trustee to act and is not obliged to inquire into the validity or propriety of the division or consolidation under this section.

(3) Any interested person may petition the court of the county in which the principal place of administration of a trust is located for an order dividing one (1) or more trusts or consolidating two (2) or more trusts. If nonjudicial consolidation has been commenced pursuant to subsection (2) of this section, a petition may be filed under this section unless the trustee has received all necessary consents. The principal place of administration of the trust is the trustee’s usual place of business where the records pertaining to the trust are kept, or the trustee’s residence if the trustee has no such place of business. At the conclusion of the hearing, if the court finds that the requirements of subsections (2)(a), (b) and (c) of this section have been satisfied, it may direct division of one (1) or more trusts or consolidation of two (2) or more trusts on such terms and conditions as appropriate. The court, in its discretion, may provide for payment from one (1) or more of the trusts of reasonable fees and expenses for any party to the proceeding.

(4) If the net fair market value of the assets of a trust, taken collectively, is less than one hundred thousand dollars ($100,000), the trustee may terminate the trust by the following procedure:

(a) The trustee shall determine a plan for distribution that agrees, as nearly as possible, with the trust’s dispositive plan;

(b) The trustee shall give notice, in writing, to all interested persons of its intent to distribute the assets in accordance with the plan unless an interested person objects in writing within thirty (30) days after the date of the notice, containing also in such notice a statement of the provisions of paragraph (e) of this subsection;

(c) If no written objection is received by the trustee within thirty (30) days after the date of the written notice to all interested persons, the trustee shall proceed to distribute the trust assets in accordance with the plan;

(d) If the trustee receives a written objection to the plan within thirty (30) days after the date of the notice, the trustee shall not distribute the assets of the trust, but may then petition the court for an order authorizing distribution in accordance with the plan, and the court shall have plenary authority to approve, modify, or reject the trustee’s petition;

(e) For purposes of the thirty (30) day provisions of this subsection, the "date of notice" shall be the later of the date set forth in the notice (if any) or the date of actual mailing, if mailed, or of actual delivery, if delivered in person to the interested person, and provided further that an objection in writing is timely if mailed within thirty (30) days to the trustee, with the burden of proof of the date of such mailing to be on the interested person.

The existence of a spendthrift or similar provision shall not affect the trustee’s powers under this subsection unless the trust instrument specifically provides that the trustee shall not have the power to terminate the trust.

(5) This section applies to all trusts whenever created.

History:

[15-7-402, added 1995, ch. 180, sec. 1, p. 663; am. 1997, ch. 211, sec. 1, p. 629; am. 2006, ch. 162, sec. 1, p. 482.]