4-10-412. Modification or termination of noncharitable irrevocable trust by consent.

(a) If upon petition the court finds that the settlor and all qualified beneficiaries consent to the modification or termination of a noncharitable irrevocable trust, the court may enter an order approving the modification or termination, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's power to consent to a modification or termination of a trust may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust or, if no agent is so authorized, then by the settlor's conservator or guardian. Exercise of the settlor's power to consent by an agent, conservator or guardian shall be in each case with the approval of the court upon a finding by the court that such action is not inconsistent with the settlor's purpose or intent.

(b) A noncharitable irrevocable trust may be modified or terminated by a trust protector provided that the terms of the trust authorize a protector and grant the trust protector the power to modify or terminate the trust.

(c) A noncharitable 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. A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.

(d) A spendthrift provision in the terms of the trust is not presumed to constitute a material purpose of the trust for purposes of this section.

(e) Upon termination of a trust under subsection (a), (b) or (c) of this section, the trustee shall distribute the trust property as provided in the terms of the trust or in default of such terms of the trust as agreed by all the beneficiaries.

(f) If not all the beneficiaries consent to a proposed modification or termination of the trust under subsection (a), (b) or (c) of this section, the modification or termination may be approved by the court if the court is satisfied that:

(i) If all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and

(ii) The interests of a beneficiary who does not consent will be adequately protected.