Thursday, June 9, 2016

Non-Judicial Settlement Agreements in Nevada


One of the primary reasons a person creates a revocable trust is to avoid probate, the formal court supervision of an estate proceeding, upon their death.  The goal is to have no court involvement whatsoever in the affairs and administration of the trust.  Even with the creation of a revocable trust, there are situations in the past that a Nevada court was required to become involved in the trust administration process.  For example, the creator of the revocable trust who is also the trustee becomes incapacitated or dies, and all of the nominated successor trustees under the terms of the trust are unable to serve for whatever reason.  In that situation, there is no successor trustee to administer the trust.  In the past, it was necessary to petition the court to assume jurisdiction of the trust and appoint a successor trustee.  However, this is no longer necessary.  In July of 2015, the Nevada legislature passed a law that allows for the resolution of certain matters relating to a trust without court approval through the use of a non-judicial settlement agreement. The law was effective October 1, 2015.  The matters that may be addressed through a non-judicial settlement agreement are:

1.  The investment or use of trust assets;
2.  The lending or borrowing of money;                                       
3.  The addition, deletion or modification of a term or condition of the trust;
4.  The interpretation or construction of a term of the trust;
5.  The designation or transfer of the principal place of administration of the trust;                                     
6.  The approval of a trustee’s report or accounting;
7.  The choice of law governing the construction of the trust instrument or administration of the trust, or both;
8.   Direction to a trustee to perform or refrain from performing a particular act;
 9.  The granting of any necessary or desirable power to a trustee;  
10.  The resignation or appointment of a trustee and the determination of a trustee’s compensation;  
11.  The merger or division of trusts
12.  The granting of approval or authority, for a trustee to make charitable gifts from a non-charitable trust;              
13.  The transfer of a trust’s principal place of administration;
14.  Negating the liability of a trustee for an action relating to the trust and providing indemnification therefore; and
15.  The termination of the trust.

John R. Mugan, Esq.
For a non-judicial settlement agreement to be valid, the agreement must not violate a material purpose of the trust, and the terms and conditions of the agreement must be ones that can be properly approved by a court.  Also it must be signed by all “indispensable parties.” An indispensable party is one who would need to consent to the change proposed by the non-judicial settlement agreement had the agreement instead been submitted to the court. This is usually all beneficiaries and parties interested in the trust.


A non-judicial settlement agreement is another tool in which to avoid court involvement in the affairs of a trust in Nevada. 


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