MARK K. SALES PHILIP M. LINDQUIST

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1 TRUST MODIFICATION MARK K. SALES PHILIP M. LINDQUIST Hughes Luce, LLP 1717 Main Street, Suite 2800 Dallas, Texas (214) (214) State Bar of Texas 31 st ANNUAL ADVANCED ESTATE PLANNING AND PROBATE COURSE June 6-9, 2007 San Antonio CHAPTER 13

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3 PHILIP M. LINDQUIST Hughes & Luce, LLP - Partner, Trusts & Estate Planning 1717 Main Street, Suite 2800, Dallas, Texas (voice) (fax) EDUCATION & PROFESSIONAL B.S., Accounting Southern Nazarene University (summa cum laude 1980) J.D. University of Texas (with honors 1983) (The Order of the Coif) Board Certified in Estate Planning & Probate Law (December 1995) Fellow The American College of Trust and Estate Counsel (April 1997; Estate & Gift Tax Committee ) Estate Planning Council of North Texas Board of Governors ( ) Dallas Estate Planning Council Board of Governors ( ; ) Negotiated the provisions of the statute governing federal fiduciary environmental liability (see 42 USCA 9607(n)) RECENT LAW RELATED PUBLICATIONS AND SPEECHES Author/Speaker Living at the Margin with the New Texas Margin Tax Estate Planning Council of North Texas (March 2007) Co-Author GST Planning When Your Daddy Becomes Your Son (or Grandson) State Bar of Texas s 30 th Annual Advanced Estate Planning & Probate Course (June 2006) Author/Speaker Adapting to the 2005 Amendments to the Bankruptcy Code Estate Planning Council of Central Texas (May 2007) State Bar of Texas s 30 th Annual Advanced Estate Planning & Probate Course (June 2006) Author/Speaker Spendthrift Trusts, Bankruptcy, and Being Your Own Trustee Collin County Bar Estate Planning Section (January 2006) Author/Speaker Asset Protection Under The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 Estate Planning Council of North Texas (October 2005) Speaker Family Limited Partnerships and Limited Liability Companies State Bar of Texas s Asset Protection Planning After the 2005 Bankruptcy Reform Act (May 2005) Author/Speaker If the Beneficiary is the Sole Trustee, Do You Have a Spendthrift Trust Texas v. Restatement 3 rd, Trusts The Center for American and Int l Law 43 rd Annual Institute on Wills, Trusts & Estate Planning (September 2004) Author/Speaker Domestic Asset Protection Trusts The Center for American and International Law 42 nd Annual Institute on Wills & Probate (May 2003) Author/Speaker Split-Dollar - Forgiven, But Going on the Wagon State Bar of Texas s 27 th Annual Advanced Estate Planning & Probate Course (June 2003) The Center for American and International Law 41 st Annual Institute on Wills & Probate (May 2002) Author/Speaker What Do We Do About Split-Dollar and About Annuities? Houston Business & Estate Planning Council (January 2002) State Bar of Texas s 25 th Annual Advanced Estate Planning & Probate Course (June 2001) Author The Hubert Regulations and Why They Are Fundamentally Sound, 14 PROBATE & PROPERTY No. 5, p 53 (September/October 2000) Author Are Taxpayers Making Enough Lemonade? Deducting Interest Up-Front on the 706, 14 PROBATE & PROPERTY No. 3, p 21 (May/June 2000) Author/Speaker Section 2053 Administrative Expenses: Prop. Hubert Regulations and Interest Deductions Corpus Christi Estate Planning Council (November 2000) Estate Planning Council of North Texas (October 2000) State Bar of Texas s 10 th Annual Advanced Drafting: Estate Planning & Probate Course (October 1999) Author Tax-Deferred Annuities: A 25% Economic Loss? 100% Taxation?, 12 PROBATE & PROPERTY No. 6, p 11 (November/December 1998) Author/Speaker Non-Qualified Tax Deferred Annuities A Lawyer s Perspective Am. Bar Assoc. Real Prop., Probate & Trust Law Sec., 11 th Ann. Spring CLE (March 2000) (Program Chair) Concho Valley (San Angelo) Estate Planning Council (January 1998) Dallas Estate Planning Council (January 1997) Primary Author The Application of CERCLA and Other Strict Liability Environmental Statutes to Fiduciary Relationships - Putting City of Phoenix in Context, 29 REAL PROP. PROB. & TR. J. No. 1, p 1 (Spring 1994) RECENT COMMUNITY ACTIVITIES Southern Nazarene University Foundation (Bethany, Oklahoma) Board Member (1991 ) Richardson (Texas) Church of the Nazarene: Church Board ( , ); Finance Committee ( , Chair ); Treasurer ( ); Adult Sunday School Teacher ( ; ) PERSONAL Married to Debbie (1980), children are Daniel (21) and Laura (18); Raised in Far North Dallas (Renner) and attended Plano I.S.D., Grades 1 to 12 Hobbies are travel (all fifty state capitols and thirteen foreign countries), cars, politics, economics, current events, and being a fan of auto racing and the Dallas Mavericks :

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5 MARK K. SALES Hughes & Luce, LLP - Partner, Fiduciary Litigation & Complex Commercial Litigation 1717 Main Street, Suite 2800, Dallas, Texas (voice) (fax) EDUCATION & PROFESSIONAL B.A. Texas A&M University (1979) J.D. Baylor University (cum laude 1985) Editor-in-Chief, Baylor Law Review Order of Barristers President, Baylor Law Review Association ( ) State Bar of Texas: Chair, Administration of the Rules of Evidence Committee (1994 and ); Member (1996-) Texas Supreme Court Advisory Committee ( ) Dallas Bar Association Immediate Past President (2007) President (2006) President-Elect (2005) Vice-President (2004) Chair, Board of Directors (2002) Chair, Finance Committee ( ) Business Litigation and Corporate Counsel Sections Fellow Dallas Bar Foundation Fellow Texas Bar Foundation President Dallas Association of Young Lawyers (1994) Director Dallas Association of Young Lawyers Foundation ( ) Barrister Patrick E. Higgenbotham American Inn of Court ( ) Member International Society of Barristers (2007) RECENT LAW RELATED PUBLICATIONS AND SPEECHES Judicial Construction and Modification of Trusts: Practical Advice for the Client (Dallas Estate Planning Council 2007) Co-author of Investigating, Preparing and Presenting Witnesses, Patrick E. Higginbotham American Inn of Court (2003) Author of Procedural Pitfalls, in Probate and Trust Litigation, Texas Lawyer (1998) Author of New Rules Changes Part II, DBA Headnotes (1998) Author of The New Texas Rules of Evidence: Changes Part II, DBA Headnotes (1998) Author of The 1998 Texas Rules of Evidence: Changes Made and Changes Rejected, State Bar of Texas Professional Development Program (1998) Author of "The 1997 Texas Rules of Evidence: Changes Made and Changes Rejected," Southern Methodist University Law Institute on Practicing Law Under the New Rules of Trial and Appellate Procedure (1997) Author of "Key Issues in Tort Litigation Involving Foreign Defendants in the United States," American Conference Institute on Successful Strategies in Toxic Tort Litigation (1996) Author of "Key Aspects of Texas Tort Reform Relating To Venue and To Deceptive Trade Practices", Eighth Annual Baylor Litigation Institute (1995) Author of "Toxic Tort Update", State Bar Eleventh Annual Litigation Update Institute (1995) Author of "The International Challenge: Handling Products Liability Claims Involving Foreign-Country Defendants in Texas Courts", 9 Tex. Personal Injury L. Rptr. 17 (1991) Author of "Government Contract Defense: Sharing the Protective Cloak of Sovereign Immunity After McKay v. Rockwell International Corp.", 37 Bay L. Rev. 181 (1985) REPRESENTATIVE EXPERIENCE Successfully defended Bart McClendon and his family partnerships in tax litigation with the IRS arising out of more than $100 million of taxes owed by the estates of his parents and grandparents Successfully handled reformation suit for the trusts of Mort Meyerson's children and for the Harte Family Trusts, Dedman Family Trusts, and Caruth Family Trusts Represented one of the daughters of Harold Simmons involving claims to remove Mr. Simmons as trustee of a $1.3 billion trust Defended Texas Scottish Rite Hospital in federal multi-district litigation panel involving more than one hundred personal injury lawsuits arising out of design, manufacture and sale of pedicle screw medical devices Numerous representations as either plaintiff or defendant in large and complex commercial litigation cases PERSONAL Married to Nancy; children are Alexandra, Marshall and Harrison Interests and hobbies are playing rock- n-roll with the Cat-daddies, football, cold beer, limousine riding :

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7 TABLE OF CONTENTS I. INTRODUCTION... 1 II. THERE ARE MANY OCCASIONS WHEN A COURT ORDER CAN HELP A CLIENT WITH A TRUST PROBLEM... 1 III. WHAT CAN A COURT DO TO HELP?... 2 A. Modification... 2 B. Other Judicial Action... 2 IV. WHAT NEEDS TO HAPPEN IF THE CLIENT IS TO GET A GOOD RESULT?... 2 V. THE PARTICIPANTS... 3 A. The Petitioner... 3 B. The Client... 3 C. The Bill Payer... 4 D. The Necessary Participants... 4 E. Charities... 4 F. Minors... 4 G. Unknowns, Unborns and Unascertained Beneficiaries... 5 H. Other Persons Who Can Bind Third Parties... 5 VI. THE FORUM... 5 A. The Proper Court... 5 B. The Proper Venue... 5 VII. WHAT ARE THE STEPS?... 6 VIII. PITFALLS... 6 A. Dealing with Actuarial and Other Uncertainties... 6 B. Creating a Gift or Estate Tax Problem... 7 C. GST Complications... 7 D. Trusts with Charitable Interests... 8 E. IRS Concerns... 8 F. Loss of Spendthrift Protection... 8 i

8 TABLE OF AUTHORITIES Regulations Treas. Reg (b)(4)... 7 Treas. Reg (b)(4)(i)(A)... 7 Treas. Reg (b)(4)(i)(B)... 8 Treas. Reg (b)(4)(i)(C)... 8 Treas. Reg (b)(4)(i)(D)... 8 Treas. Reg (b)(4)(i)(E)... 8 Rules RULE 1.06 cmt RULE 1.06 cmt Tex. R. Civ. Pro Texas Rule of Professional Conduct 1.06(c)... 3 Statutes Trust Code (7)... 3 Trust Code (a)... 3 Trust Code Trust Code Trust Code , 3, 4, 5 Trust Code , 6 Trust Code (b)(1)... 5 Trust Code (b)(2)... 5 Trust Code (c)... 6 Trust Code (d)... 6 Trust Code (e)... 6 Trust Code (f)(2)... 6 Trust Code (f)(3)... 5 Trust Code Trust Code (a)... 3 Trust Code (c)... 2 Trust Code (c)(1)... 5 Trust Code (c)(2)(A)... 5 Trust Code (c)(2)(B)... 5 Trust Code (c)(3)... 4 Trust Code (c)(4)... 5 Trust Code Trust Code (a)... 5 ii

9 TRUST MODIFICATION I. INTRODUCTION Have you ever looked at a trust agreement and thought, I wish they would have...? In such situations, we often find ourselves lamenting how a client's trust was drafted and wishing we could turn back time. Sometimes, effectively, we can. For tax and other reasons, most trusts are either irrevocable and unamendable, or they eventually become such. Given the uncertainties of life, even the wisest plan can fail to anticipate future developments that can lead to unintended results. As a result, the need to modify a trust, or otherwise seek a court order, can arise in a variety of situations. This outline provides practical advice and information about judicial trust modifications and other relief so that you can determine when a court proceeding is a good idea (and if it is the proper avenue) to aid your client in "rewriting" the past. II. THERE ARE MANY OCCASIONS WHEN A COURT ORDER CAN HELP A CLIENT WITH A TRUST PROBLEM. FOR EXAMPLE: A. A trust s terms provided for current distributions of income to nieces and nephews, followed by income distributions to great-nephews and great-nieces, and ultimately a perpetual trust in favor of named charities. Some named charities got only $1,000 a year. The primary charitable beneficiaries are sophisticated charities that successfully manage their own endowments, but the trust provides for a perpetual corporate trustee. Since the trust was drafted, distributions of income have decreased substantially, due to the UPIA twins, lower interest rates, etc. All of the beneficiaries would be happy to see the trust terminated. B. Grandparents established trusts for each of their grandchildren under a single agreement that provided for common trustees and a common investment strategy. After 50 years, the grandchildren have radically different needs. Some need current distributions for support and others want their trusts to maximize the grandfathered generation skipping transfer tax opportunities. The trustees, who are getting up in years, find it difficult to make anyone happy. All of the beneficiaries would be better served if each trust could have its own trustees and investment strategy. C. Assume the same facts as in B above, except that instead of separate trusts there is a single pot or basket trust. Further, some of the beneficiaries want aggressive growth while others want secure income. 1 The trustees are wondering just how much protection their exculpatory clause will provide them in the midst of these various cross-currents. D. Husband left most of his estate in a QTIP trust with remainder to his favorite charities. His will provided that if his widow disclaimed, the trust would terminate and be distributed to the charities; however, more than nine months have elapsed since husband died. The primary asset in the QTIP trust is a closely held business, which the family wants to sell for significantly more than it was worth when husband died, but this will trigger substantial capital gains taxes on money that will ultimately be paid to charity. Widow does not need the income from the QTIP, but cannot assign her interest due to a spendthrift clause. Further, even if she could assign her interest, the trust terms provide that it will not terminate until the widow s death. E. Grandmother established trusts for the benefit of her grandson while she lived in New York City with a New York City trustee. Grandson now lives in Texas and does not like his trust paying New York state and city income taxes on capital gains and undistributed income. F. Irrevocable trusts were drafted without flexibility. The successor trustees are no longer close to the family (and the family and one of them are suing one another). The termination provisions are also poorly coordinated, as the facts have developed. Finally, the distribution provisions are unclear. G. Due to unfortunate drafting, pecuniary bequests have been duplicated in two different documents, which is clearly not what the settlor intended. H. The beneficiaries do not trust the stock market and believe that real estate is the only appropriate long term investment. Unfortunately, the local real estate market is in a prolonged slump that may well continue. The trustee has identified a shopping center in another city, and the beneficiaries responded favorably to the idea when it was described to them over dinner. How can the trustee protect itself if this non-diversified real estate investment goes bad? I. Son dies young without issue, so his trust is now held for his sister. However, son s trust and his sister s trust have different trustees, even though the trusts are held for the same beneficiaries and terms. Two sets of trustees are not providing any additional

10 value to the beneficiaries, but substantially increase the trusts expenses. III. WHAT CAN A COURT DO TO HELP? A. Modification. An action requesting a court to change, alter or amend the terms of a trust instrument, or to terminate a trust in whole or in part is a trust modification and is governed by Section of the Texas Trust Code (the Trust Code, which is part of the Texas Property Code). 1. Trust Code Section allows a court to modify or terminate a trust when: a. The purposes of the trust have been fulfilled or have become illegal or impossible to fulfill; b. Because of circumstances not known to or anticipated by the settler, the order will further the purposes of the trust; c. Modification of administrative, nondispositive terms of the trust is necessary or appropriate to prevent waste or avoid impairment of the trust s administration; d. The order is necessary or appropriate to achieve the settlor s tax objectives and is not contrary to the settlor s intentions (and the court may direct that such an order has retroactive effect); e. Continuance of the trust is not necessary to achieve any material purpose of the trust (but only if all the beneficiaries consent or are deemed to consent); or f. The order is not inconsistent with a material purpose of the trust (but only if all the beneficiaries consent or are deemed to consent). 2. With respect to the last two of the above six items, a court can only modify a trust if all the beneficiaries of the trust consent to the order or are deemed to have consented to the order. For this purpose, a minor, incapacitated, unborn or unascertained beneficiary is deemed to have consented if a person representing the beneficiary s interest under Trust Code Section (c) has consented or if a guardian ad litem appointed to represent the beneficiary s interest under Section consents on the beneficiary s behalf. 3. Note that Section was substantially liberalized in the 2005 Legislative session to permit modifications in a broader variety of circumstances than allowed under prior law. Prior to those amendments, which became effective on January 1, 2006, modifications were only permitted in the second 2 circumstance listed above (in b ) when compliance with the terms of the trust would defeat or substantially impair the accomplishment of the purposes of the trust (instead of current law s more accommodating requirement that the order will further the purposes of the trust) and in the first circumstance listed above (in a ). The new statute. B. Other Judicial Action. Trust Code Section provides a district court or a statutory probate court has original and exclusive jurisdiction over all proceedings concerning trusts. Subsection (a) of that section goes on to provide nonexclusive list of various kinds of trust matters over which those courts have jurisdiction. The matters enumerated are: 1. Construe a trust instrument; 2. Determine the law applicable to a trust instrument; 3. Appoint or remove a trustee; 4. Determine the powers, responsibilities, duties, and liability of a trustee; 5. Ascertain beneficiaries; 6. Make determinations of fact affecting the administration, distribution, or duration of a trust; 7. Determine a question arising in the administration or distribution of a trust; 8. Relieve a trustee from any or all of the duties, limitations, and restrictions otherwise existing under the terms of the trust instrument or of this subtitle; 9. Require an accounting by a trustee, review trustee fees, and settle interim or final accounts; and 10. Surcharge a trustee. Note that this is by no means an exclusive list. IV. WHAT NEEDS TO HAPPEN IF THE CLIENT IS TO GET A GOOD RESULT? A. The court order needs to be binding on everyone who might complain in the future. B. The proceeding needs to be done on an efficient, expeditious, and cost-effective basis. C. The proceeding needs to be kept friendly. Sad experience has taught that a friendly lawsuit can go bad quickly if, for example, someone gets upset when their baby is served by a process server. As the old advertising slogan says, the best surprise is no surprise. Remember that at their core these proceedings are lawsuits, with formal service of citation ( You have been sued ), etc. That does not

11 mean that the proceedings cannot usually be kept friendly and everything agreed to, which is an absolute necessity if costs are to be kept in check. Contacting the relevant parties or their agents early is imperative to prevent misunderstandings, which can lead to less than friendly, and expensive, interactions. The importance of an attorney employing good people skills in these matters cannot be over-emphasized. As vital as an attorney s technical skills are in these matters, success will often hinge on the attorney s ability to persuade everyone involved to move forward in agreement as to what needs to be done. D. Alternatives need to be considered. For example, under the recently modified and liberalized division and combination of trust provisions in Section of the Trust Code, which were adopted by the 2005 Legislature, the situation recited in Section I, Paragraph I above, regarding the son s and sister s separate trusts, can be dealt with by a simple merger under the statute. V. THE PARTICIPANTS A. The Petitioner. It is clear that a trustee or a beneficiary can always file a petition to initiate court action regarding a trust. Section (a) of the Trust Code, governing the judicial modification or termination of trusts, expressly provides that a trustee or a beneficiary can petition for a change in trustee, the modification of the terms of the trust, that the trustee be required or permitted to do certain acts that are no authorized or forbidden by the terms of the trust (or that the trustee be prohibited from performing acts required by the terms of the trust), or that the trust be wholly or partially terminated. Another provision, Section (a) of the Trust Code, provides that any interested person can bring an action under Section of the Texas Trust Code, which provides for jurisdiction over all proceedings concerning trusts. As defined in Section (7) of the Trust Code, interested persons include not only trustees and beneficiaries, but any persons having an interest in or a claim against the trust and any persons who are affected by the administration of the trust. That definition goes on to provide that whether a person (other than a trustee or a named beneficiary ) is an interested person may vary from time to time and must be determined according to the particular purposes of and matter involved in any proceeding. It is not clear how Section more restrictive language should be reconciled with the more expansive language in Section (a). Given the apparent inconsistency, it would be prudent to only have a beneficiary or trustee bring an action governed by Section so that any order obtained is not subject to a collateral attack on the jurisdiction of the court to enter such an order, such as a claim that the jurisdiction of the court was not properly invoked by a party authorized to do so under Section B. The Client. If an attorney is involved, he or she will have at least one client and be able to readily identify that client. However, normally there are multiple people involved in these matters, as beneficiaries, as trustees, and some in multiple roles or capacities. Consequently, the question often necessarily arises, is it ethical for an attorney to represent more than one of these persons (e.g. multiple beneficiaries or the trustee and one or more beneficiaries)? The first question is whether there is a conflict among the various persons. Sometimes they will be united in their goals and interests. Even if there is a conflict among the persons, multiple representation is permissible so long as the attorney complies with Texas Rule of Professional Conduct 1.06(c). Rule 1.06 provides that if the attorney reasonably believes (1) that the representation of each client will not be materially affected and (2) each client consents to such representation, after full disclosure of the existence, nature and implications of the conflict and of the possible adverse consequences of common representation and the advantages involved, if any, then multiple representation is acceptable. Further, in situations like these where an attorney may represent more than one person, and where an attorney may not represent other people who are involved and with whom she has contact in connection with the matter, an attorney has an ethical obligation to be clear with all involved as to whom the attorney represents, and who she does not represent. Sending an I do not represent you letter is always an option in such a situation, even if a clear message might be delivered in a little gentler way. See RULE 1.06 cmt. 15 (the attorney should make clear the relationship of the parties involved). Such a communication need not be in a separate letter, but can be clearly set forth in an introductory letter, which may have enclosures such as the filed petition. Moreover, if the attorney and the parties opt for common representation, it would be prudent for an attorney to provide the potential dual clients with at least a written summary of the considerations disclosed. See RULE 1.06 cmt. 7-8 (regarding full disclosure and informed consent). Also, where an attorney plans to represent more than one individual, even if each person is willing to give their consent, the attorney must still carefully sort through the potential conflicts among the various parties and be sure that they are resolved appropriately. Representing beneficiaries in the same 3

12 generation who share on a pro rata basis may not present a potential conflict. But there will frequently be a potential conflict between generations or between a current beneficiary and a remainder beneficiary. Often it will be impossible to represent all or some of the parties to the court proceedings concerning the trust. Care should be taken in making the analysis to consider all of the reasonably possible circumstances. C. The Bill Payer. Generally when the Petitioner is the trustee of the trust for which judicial intervention is sought, the trustee will be able to pay the legal fees and expenses of the action directly from the trust. To the extent any party raises the issue in court, Section of the Trust Code provides that the court may make such awards of costs and reasonable and necessary attorney s fees as may seem equitable and just, which section is applicable if the proceeding is under the Trust Code. Given the broad scope of Section of the Trust Code ( all proceedings concerning trusts ), attorney s fees and costs are potentially within the court s discretion to award in every trust case. Thus, any party may seek a court order that their attorney s fees and costs should be paid from the trust, and the court may order such, as it thinks appropriate. Similarly, a party may challenge a trustee s paying costs and attorney s fees from the trust and let the court resolve the issue. D. The Necessary Participants. At a minimum Trust Code Section requires the following individuals to be named in any action concerning trusts: 1. A beneficiary on whose act or obligation the action is predicated; 2. A beneficiary designated by name in the instrument creating the trust; 3. A person who is actually receiving distributions from the trust estate at the time the action is filed; and 4. The trustee, if a trustee is serving at the time the action is filed. Contingent beneficiaries designated as a class are not necessary parties. However, care should be taken before proceeding with only the above listed necessary parties. Pursuant to the Texas Civil Practice & Remedies Code and the Texas Rules of Civil Procedure, other parties, besides those under Section , should often be named in and notified of the action. Parties who are not joined or deemed to be virtually represented may not be bound by the court s decision regarding the trust, leaving the ruling open to collateral attack by an interested non-party in the future who dislikes the court s order. E. Charities. If a charitable beneficiary is named in the trust instrument, notice of the action must be provided to the Texas Attorney General as required by Chapter 123 of the Texas Property Code (Section et seq.). Among other requirements, the Attorney General is to be given notice at least 25 days before any hearing on the petition. While failure to comply means that the judgment is voidable, rather than void, judges will often refuse to hear the matter until the requisite time period has lapsed or the Attorney General has filed a waiver. Typically the Attorney General either waives its right to intervene in the proceeding or is simply silent. However, in some cases the Attorney General will monitor proceedings and, in extraordinary circumstances where he becomes concerned about the interests of charity being protected, may become actively involved. F. Minors. Minor children cannot directly be made parties to a reformation action because they lack the legal capacity to represent their interests. They must instead be represented by someone with authority to represent them. Generally the best way to accomplish this is by having a parent, who is either not a beneficiary of the trust or who does not have a conflict of interest with the minor, serve as next friend. See Tex. R. Civ. Pro. 44. The non-beneficiary parent will often be the only choice because a beneficiary parent will often have a conflict of interest due to the differences in the parent s and child s generations. However, even when a parent is serving as next friend, the court, in its discretion, may appoint a guardian ad litem to represent the interests of the minor child. Trust Code If there is no conflict of interest and no guardian of the estate or guardian ad litem has been appointed, a parent may represent his minor child as guardian ad litem or as next friend and so bind the child. Trust Code (c)(3). Resolving the representation of the minor does not resolve the need to have minor beneficiaries personally served. This is because the issuance and service of citation cannot be waived on behalf of a minor who is a defendant in the proceeding. As a practical matter, having an infant served personally may seem pointless, but that is what is required as a matter of law in order to have the minor before the court. The wise attorney will give the parents who have not been involved a heads up that their child is going to be served and the citation contains language like you have been sued. 4

13 The rules are similar for incapacitated persons, but they will more often already have a guardian of their estate or someone else duly authorized to act on their behalf. The ward will be bound by an order binding the guardian of the estate or the guardian ad litem to the extent there is no conflict of interest between them. Trust Code (c)(2)(A). G. Unknowns, Unborns and Unascertained Beneficiaries. Trusts will often have contingent or other beneficiaries who are unknown, unborn or unascertained. An unborn or unascertained person (but not a person whose identity or address is unknown) who is not otherwise represented will be bound by a court order to the extent his interest is adequately represented by another party having a substantial identical interest in the proceeding. Trust Code (c)(4) and (d). This doctrine of virtual representation can be very helpful in getting everyone with an interest in the trust bound by the court s order. But if the doctrine of virtual representation is inapplicable and if it is desired that the court s order be binding on everyone who might complain in the future (and it often will be) those beneficiaries who cannot be personally served must be represented in the proceedings so that they are bound. One way to do this is to have the court appoint a guardian ad litem to represent these unknown, unborn and unascertained beneficiaries. See Trust Code (a). If there are no conflicts among them, the same guardian ad litem can represent one or more of the minors and the unknown, unborn and unascertained beneficiaries. Id. These unknown, unborn and unascertained beneficiaries will be bound by an order binding on their guardian ad litem to the extent there is no conflict of interest between them or among persons represented. Trust Code (c)(2)(A). H. Other Persons Who Can Bind Third Parties. In addition to parents, guardians of the estate and guardian ad litems, there are other people who if bound by an order will bind third persons. An order binding the sole holder or all coholders of a power of revocation (e.g., like a typical revocable inter vivos management trust) or a presently exercisable general power of appointment (which, by definition, will not include a testamentary power of appointment), including one in the form of a power of amendment will bind other persons to the extent their interests, as objects, takers in default, or otherwise are subject to the power. Trust Code (c)(1). Also, to the extent there is no conflict of interest between them or among persons represented, an order binding a trustee binds beneficiaries of the trust in proceedings to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties. Trust Code (c)(2)(B). VI. THE FORUM There are two primary issues when it comes to where to file a trust action what is the proper court and what is the proper venue? Ultimately, the proper court and proper venue will depend in large part on whether the county has a statutory probate court. A. The Proper Court. According to Section of the Trust Code, the general rule in Texas is that actions involving trusts must be filed in state District Court. However, in those counties where venue lies that have a statutory probate court, the statutory probate court is an alternative. B. The Proper Venue. The county where the reformation action should be filed, under Trust Code Section , is commonly the situs of the administration of the trust or a county where the administration of the trust was maintained in the four years preceding the filing of the petition. However, in certain circumstances, reformation actions may also be filed in the county where the trustee resides or maintains its principal office. In 1999, the Legislature revised Section (i) to expand its provisions, (ii) to deal with the reality that local individual banks had been largely replaced by state-wide and even interstate banks and (iii) to limit the potential for a trustee forcing plaintiffs to litigate away from where the trust had been administered by the trustee moving in anticipation of litigation. Thus, venue is always proper in the county in which the situs of administration of the trust is maintained or has been maintained at any time during the four years before the date the action is filed. Trust Code (b)(2) and (c). The situs of administration is the location in Texas where the trustee maintains the office that is primarily responsible for dealing with the settlor and the beneficiaries of the trust, which may also be (but not necessarily) the same as the principal office of a corporate trustee. Trust Code (f)(3). Alternatively, if there is a single, noncorporate trustee, venue can also be in the county in which the trustee resides or has resided at any time during the four years before the date the action is filed. Trust Code (b)(1). And if a corporate trustee is a defendant, the action may be brought in the county in which the corporate trustee maintains its principal office in Texas. Trust Code (c). The principal office of a corporate trustee is an office of a 5

14 corporate trustee in Texas where the decision makers for the corporate trustee in Texas conduct the daily affairs of the corporate trustee. Trust Code (f)(2). The mere presence of an agent or representative of the corporate trustee does not establish a principal office. Id. The principal office of the corporate trustee may also be (but not necessarily) the same as the situs of administration of the trust. Id. Note that if there are multiple trustees, venue is always tied to the situs of administration of the trust. Trust Code Section also provides that the court may transfer venue by agreement of the parties to any other county and gives the court a limited opportunity to transfer venue to another county of proper venue on a motion of a defendant, joined party or intervening party filed with the answer or an equivalent pleading. See Trust Code (d) and Trust Code (e). VII. WHAT ARE THE STEPS? Here is a very general outline of the various steps involved (with some variation on the order depending upon the circumstances): A. Help the client to decide on the objective and overall strategy. B. Contact the other parties that will need to be involved to solicit their support and identify any concerns they have so that they can be dealt with proactively and early. C. Draft the Original Petition and the Agreed Judgment. D. After identifying where venue is proper, and whether a statutory probate court sites in any of those counties where venue is proper, choose from among the proper courts and counties (to the extent there is a choice) and file the petition. E. If minor beneficiaries are defendants, or if there are other parties that will not file a waiver, have citation issued and served on each of them. F. Ask the court to appoint any necessary guardian ad litems. G. Counsel should send a detailed letter to all parties to the action explaining the procedure and enclosing a: 1. File-stamped copy of the Petition; 2. Copy of the Agreed Judgment for each party to sign and return; and 6 3. Waiver of Citation, Voluntary Appearance and Consent to Relief Sought for each party to sign and return. H. File Waivers/Voluntary Appearances with the court. I. Give proper notice to the Texas Attorney General if a charitable beneficiary is named in the trust and file the required evidence of having done so with the court. J. Confirm with the court (or the court administrator) to be sure that everything the court wants done has been attended to and whether a hearing will be required. K. Submit the executed Agreed Judgment to the court and have a hearing, if one is required. L. Get a transcript of the hearing. M. Send out copies of the order after it becomes final, which is usually 30 days after the order is signed. VIII. PITFALLS A. Dealing with Actuarial and Other Uncertainties. If a trust is terminated, it will be necessary to find a way to fairly divide the trust corpus among the various beneficiaries, who may have different interests. For example, how do you divide the corpus among beneficiaries who have a life estate versus those who have a remainder interest? One approach is to use the Internal Revenue Service ( IRS ) valuation tables as an even-handed way to measure the respective interests of the parties. But in some situations, the tables may not be sophisticated enough to value the interests (such as the interest of an income beneficiary who succeeds a current income beneficiary and/or who shares as a surviving member of a class). In these cases, it may be necessary to hire an actuary who will value the interests using the principles of the IRS tables or some other methodology that is agreeable to everyone involved. Note that some assumptions may have to be agreed to by the parties, such as that no further children will be born into certain families, so that the actuary can ignore the possibility of unborn beneficiaries. Using the IRS tables may provide some measure of protection from a challenge by the IRS that a taxable gift has been made from one or more beneficiaries to others when the trust terminates and the corpus is divided. Another potential problem is when a contingent beneficiary would take an interest in the trust only if a current beneficiary (often the contingent

15 beneficiary s parent) fails to survive until the trust terminates by its terms. Consideration should be given to purchasing a paid up term life insurance policy with a portion of the proceeds to fairly compensate the contingent beneficiary and to leave her in as similar position as is possible. Yet another potential problem is when the trust provides for discretionary distributions or distributions on an ascertainable standard, because such distributions cannot be readily measured actuarially. What do you do when a gift is to a class of people, such as children, and there is a material possibility that additional children may be born after the trust is terminated? It may make sense to hold that property in trust for a reasonable period of time, after which the property would be divided among the members of the class, including those born after the trust termination. Doing so avoids the possibility of after-born members being disadvantaged by closing the class prematurely. As a practical matter, the parties, including the ad litem representing after-born beneficiaries, will have a say as to whether, and for how long, the class should be kept open. Representations, or lack thereof, by the relevant parent as to future plans for additional children will help to inform those involved as to what may be reasonable in the circumstances, in addition to a consideration of the nature of the interest that children may take in the future if the trust is not terminated. Note that in some cases the division of the corpus may become a matter of negotiation among the parties (and any attorneys involved should be very careful to identify such possible conflicts early on so that they can be dealt with appropriately). B. Creating a Gift or Estate Tax Problem. Because of the broad powers that courts have over trusts, the same care must be taken to evaluate the gift and estate tax ramifications of the requested court action as would be taken in drafting a trust in the first place. This is all the more difficult to do because the attorney will often be working with a document that he did not draft and is unfamiliar with. There is the potential for devastating mistakes. For example, take the situation where a trust is being moved from New York to Texas in order to save state and city income taxes. In these situations, a general power of appointment can be given inadvertently to a beneficiary (which can be an absolute estate and gift tax disaster, dwarfing the savings in state and city taxes) when changing the law governing a trust from New York law to Texas law in connection with the move of the trust s situs of administration. This can arise because Texas does not have a statute that corresponds to the New York statute that limits the power that a trustee who is also a beneficiary may exercise in his or her own favor. In Texas, it is routine (and necessary) practice to draft the instrument to be clear that a general power of appointment is not given to the trustee who is also a beneficiary. However, New York attorneys frequently draft in reliance on the New York statute and do not expressly deal in the trust instrument with the general power of appointment problem that would exist but for the New York statute. All was well until the New York statute no longer governs the trust, when a general power of appointment that springs into being subjects the entire trust to an estate tax or a gift tax. To avoid such a disaster, it is necessary to get a provision included in the court order that keeps the trustee who is a beneficiary from having a general power of appointment, perhaps by including a provision that the New York statute continues to apply. C. GST Complications. Problems with the Generation Skipping Transfer Tax ( GST Tax ) may arise when there is a desire to change a trust that provides for multiple generations or that in some way affects multiple generations. Generally, a trust that would otherwise be subject to GST Tax is grandfathered so that the tax does not apply to the trust if the trust was in existence before However, such a trust may lose its grandfathering from the GST Tax if changes are made to the trust that are beyond those permitted by the applicable Treasury Regulations. The Internal Revenue Service used to take a very aggressive view as to when a trust modification, judicial construction, settlement agreement, or trustee action would cause a trust to lose its grandfathered status for GST Tax purposes. However, in late 2000, the Treasury set forth regulations that deal with how a trust can be modified without loss of grandfathering. Those regulations are found in Treasury Regulation (b)(4). In general, the regulations set forth rules in four situations. First, the exercise of existing discretionary powers that does not extend the time period that property may be held in trust beyond the traditional rule against perpetuities period (or for a term of no more than 90 years) will not result in the loss of grandfathering. Treas. Reg (b)(4)(i)(A). Second, a court-approved settlement of a bona fide issue, where the settlement is the product of arm s length negotiations and within the range of reasonable outcomes as a matter of the governing instrument and applicable state law, will not result in the loss of grandfathering. Treas. Reg (b)(4)(i)(B). Third, a judicial construction of a governing instrument to resolve an ambiguity or to correct a scrivener s error will not result in the loss of grandfathering if the judicial action involves a bona fide issue and the construction is consistent with 7

16 applicable state law that would be applied by the highest court of the state. Treas. Reg (b)(4)(i)(C). Finally, other modifications that are not described in the provisions mentioned above in this paragraph, and that are valid under state law, will not result in the loss of grandfathering if the modification does not shift a beneficial interest in the trust to a beneficiary in a lower generation and the modification does not extend the time for vesting any beneficial interest beyond the period provided for in the original trust. Treas. Reg (b)(4)(i)(D). The regulations are quite detailed and should be reviewed whenever a trust modification involving a grandfathered trust is being modified or otherwise changed by judicial or nonjudicial action. Treas. Reg (b)(4)(i)(E) concludes that set of regulations with a dozen detailed examples that provide significant insight into the provisions summarized above. Similarly, a trust that would otherwise be subject to GST Tax may be exempt due to the allocation of GST Exemption to the trust; however, similar care should be taken with these trusts to be sure that the exemption is not lost due to changes made by the court s action. And assets in a trust that is either exempt or grandfathered from GST Tax will be lose their protection and be subject to estate and gift tax if the trust is terminated and the assets distributed to the beneficiaries. protections provided by the trust. While it is clear that terminating a trust will terminate any spendthrift protection that the trust provided, other adverse impacts may not be so obvious. A power as trustee that is given to a person who is also a beneficiary can result in the spendthrift clause being nullified as to that beneficiary. And if the governing law is changed from the law of one state to another, the spendthrift law and degree of protection may have changed as well. Changes in the situs of administration may also have implications in the event of bankruptcy. 1 D. Trusts with Charitable Interests. In some instances, there is a desire to change charitable trust beneficiaries or to collapse split-interest trusts (i.e., charitable remainder trusts or charitable lead trusts) and pay off the charitable and noncharitable interests to simplify planning and tax reporting. Changes to, including terminations of, split interest trusts and pure charitable trusts (that are treated as private foundations) require court approval before such changes may obtain IRS approval. Failing to do so may result in termination taxes. E. IRS Concerns. The IRS may not be bound to follow a state trial court order regarding a trust when it wants to assess a tax. The IRS also cannot be made a party to the state court action. Therefore, if the reformation results in a change that is too uncertain for tax purposes, it may be desirable to obtain a private letter ruling to bind the IRS. Consider delaying the final entry of the state court order until a satisfactory private letter ruling is obtained. F. Loss of Spendthrift Protection. Consideration should be given to the implications of the court order on any spendthrift 8 1 * Mark K. Sales and Philip M. Lindquist are partners in the Dallas office of Hughes & Luce, L.L.P. They would like to recognize co-authors Kathryn G. Henkel, Shannon G. Guthrie and Christine A. Nowak.

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