PocketLaw | Illinois Compiled Statutes

Creation, Validity, Modification, and Termination of Trust

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(760 ILCS 3/Art. 4 heading)

Article 4. Creation, Validity, Modification, and Termination of Trust.

(760 ILCS 3/401)

Sec. 401. Methods of creating trust. A trust may be created by:

(1) transfer of property to another person as trustee during the settlor's lifetime or by will or other disposition taking effect upon the settlor's death;
(2) declaration by the owner of property that the owner holds identifiable property as trustee;
(3) exercise of a power of appointment in favor of a trustee;
(4) order of a court; or
(5) exercise by an authorized fiduciary of the powers granted in Article 12.

(Source: P.A. 101-48, eff. 1-1-20; 102-279, eff. 1-1-22.)

(760 ILCS 3/402)

Sec. 402. Requirements for creation.

(a) A trust is created only if:

(1) the settlor or other person creating the trust has capacity to create a trust;
(2) the settlor or other person creating the trust indicates an intention to create the trust;
(3) the trust has a definite beneficiary or is:

(A) a charitable trust;
(B) a trust for the care of an animal, as provided in Section 408; or
(C) a trust for a noncharitable purpose, as provided in Section 409;

(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary.

(b) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

(c) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

(Source: P.A. 101-48, eff. 1-1-20; 102-279, eff. 1-1-22.)

(760 ILCS 3/403)

Sec. 403. Trusts created in other jurisdictions. A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation:

(1) the person creating the trust was domiciled, had a place of abode, or was a national;
(2) a trustee was domiciled or had a place of business; or
(3) any trust property was located.

(Source: P.A. 101-48, eff. 1-1-20; 102-279, eff. 1-1-22.)

(760 ILCS 3/404)

Sec. 404. Trust purposes. A trust may be created only to the extent its purposes are lawful and not contrary to public policy.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/405)

Sec. 405. Charitable purposes; enforcement.

(a) A charitable trust may be created for any charitable purpose.

(b) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary and do not delegate to the trustee or others willing to exercise the authority to select one or more charitable purposes or beneficiaries, then the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intention to the extent it can be ascertained.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/406)

Sec. 406. Creation of trust induced by fraud, duress, or undue influence. If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part of the trust, is procured by fraud, duress, mistake, or undue influence, the revocation is void.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/407)

Sec. 407. Evidence of oral trust. Except as required by a statute other than this Code, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/408)

Sec. 408. Trusts for domestic or pet animals.

(a) A trust for the care of one or more designated domestic or pet animals is valid. The trust terminates when no living animal is covered by the trust. A trust instrument shall be liberally construed to bring the transfer within this Section, to presume against a merely precatory or honorary nature of its disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.

(b) A trust for the care of one or more designated domestic or pet animals is subject to the following provisions:

(1) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income of the trust may be converted to the use of the trustee or to a use other than for the trust's purposes or for the benefit of a covered animal.
(2) Upon termination, the trustee shall transfer the unexpended trust property in the following order:

(A) as directed in the trust instrument;
(B) to the settlor, if then living;
(C) if there is no direction in the trust instrument and if the trust was created in a non-residuary clause in the transferor's will, then under the residuary clause in the transferor's will;
(D) to the transferor's heirs under Section 2-1 of the Probate Act of 1975.

(3) The intended use of the principal or income may be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court having jurisdiction of the matter and parties, upon petition to it by an individual.
(4) Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is required by reason of the existence of the fiduciary relationship of the trustee.
(5) The court may reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust property under paragraph (2).
(6) If a trustee is not designated or no designated trustee is willing and able to serve, the court shall name a trustee. The court may order the transfer of the property to another trustee if the transfer is necessary to ensure that the intended use is carried out, and if a successor trustee is not designated in the trust instrument or if no designated successor trustee agrees to serve and is able to serve. The court may also make other orders and determinations as are advisable to carry out the intent of the transferor and the purpose of this Section.
(7) The trust is exempt from the operation of the common law rule against perpetuities.

(Source: P.A. 101-48, eff. 1-1-20; 102-279, eff. 1-1-22.)

(760 ILCS 3/409)

Sec. 409. Noncharitable trust without ascertainable beneficiary.

(a) Except as otherwise provided in Section 408 or by another statute, a trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee.

(b) The trust may not be enforced for more than 21 years. If the trust is still in existence after 21 years, the trust shall terminate. The unexpended trust property shall be distributed in the following order:

(1) as directed in the trust instrument;
(2) to the settlor, if then living;
(3) if the trust was created in a non-residuary clause in the settlor's will, then pursuant to the residuary clause in the settlor's will;
(4) to the transferor's heirs under Section 2-1 of the Probate Act of 1975.

(c) A trust authorized by this Section may be enforced by a person appointed in the trust instrument or, if no person is so appointed, by a person appointed by the court.

(d) Property of a trust authorized by this Section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Property not required for the intended use must be distributed as provided in subsection (b).

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/410)

Sec. 410. Modification or termination of trust; proceedings for approval or disapproval.

(a) In addition to the methods of termination prescribed by Sections 411 through 414, a trust terminates to the extent the trust is revoked or expires pursuant to the trust instrument, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, contrary to public policy, or impossible to achieve.

(b) A proceeding to approve or disapprove a proposed modification or termination under Sections 411 through 416, or trust combination or division under Section 417, may be commenced by a trustee or beneficiary or by the Attorney General for a trust with a charitable interest. The settlor of a charitable trust may maintain a proceeding to modify the trust under Section 413.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/411)

Sec. 411. Modification or termination of noncharitable irrevocable trust by consent.

(a) 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.

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

(c) The court shall consider spendthrift provisions as a factor in making a decision under this Section, but the court is not precluded from modifying or terminating a trust because the trust contains spendthrift provisions.

(d) Upon termination of a trust under subsection (a), the trustee shall distribute the trust property as agreed by the beneficiaries.

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

(1) if all of the beneficiaries had consented, the trust could have been modified or terminated under this Section; and
(2) a beneficiary who does not consent is treated equitably and consistent with the purposes of the trust.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/412)

Sec. 412. Modification or termination because of unanticipated circumstances or inability to administer trust effectively.

(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor's probable intention.

(b) The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust's administration.

(c) Upon termination of a trust under this Section, the court shall order the distribution of the trust property as agreed by the beneficiaries, or if the beneficiaries cannot agree, then as the court determines is equitable and consistent with the purposes of the trust.

(d) Notwithstanding any other provision in this Section, if the trust contains a charitable interest, the modification cannot diminish the charitable interest or alter the charitable purpose, except as would be permitted under Section 413, and upon termination of a trust under this Section, any charitable distribution shall be made in a manner consistent with the settlor's charitable purpose as determined by the court.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/413)

Sec. 413. Cy pres.

(a) Except as otherwise provided in subsection (b), if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful:

(1) the trust does not fail, in whole or in part;
(2) the trust property does not revert to the settlor or the settlor's successors in interest; and
(3) the court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor's charitable purposes.

(b) A provision in the terms of a charitable trust that would result in distribution of the trust property to a noncharitable beneficiary prevails over the power of the court under subsection (a) to apply cy pres to modify or terminate the trust only if, when the provision takes effect:

(1) the trust property is to revert to the settlor and the settlor is still living; or
(2) fewer than 21 years have elapsed since the date of the trust's creation.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/414)

Sec. 414. Modification or termination of uneconomic trust.

(a) After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than $100,000 may terminate the trust if the trustee concludes that the costs of continuing the trust will substantially impair accomplishment of the purpose of the trust.

(b) The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.

(c) Upon termination of a trust under this Section, the trustee shall distribute the trust property to the current beneficiaries in the proportions to which they are entitled to mandatory current distributions, or if their interests are indefinite, to the current beneficiaries per stirpes if they have a common ancestor, or if not, then in equal shares. The trustee shall give notice to the current beneficiaries at least 30 days before the effective date of the termination.

(d) This Section does not apply to an easement for conservation or preservation.

(e) If a particular trustee is a current beneficiary of the trust or is legally obligated to a current beneficiary, then that particular trustee may not participate as a trustee in the exercise of this termination power; however, if the trust has one or more co-trustees who are not so disqualified from participating, the co-trustee or co-trustees may exercise this power.

(f) This Section does not apply to the extent that it would cause a trust otherwise qualifying for a federal or state tax benefit or other benefit not to qualify, nor does it apply to trusts for domestic or pet animals.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/415)

Sec. 415. Reformation to correct mistakes. The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence what the settlor's intention was and that the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.

(Source: P.A. 101-48, eff. 1-1-20.)

(760 ILCS 3/416)

Sec. 416. Modification to achieve settlor's objectives. To achieve the settlor's tax objectives or objective to qualify for government benefits, the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intention. The court may provide that the modification has retroactive effect.

(Source: P.A. 101-48, eff. 1-1-20; 102-279, eff. 1-1-22.)

(760 ILCS 3/417)

Sec. 417. Combination and division of trusts.

(a) Subject to subsections (b), (c), and (d), after notice to the qualified beneficiaries, a trustee may:

(1) consolidate 2 or more trusts having substantially similar terms into a single trust;
(2) sever any trust estate on a fractional basis into 2 or more separate trusts; and
(3) segregate by allocation to a separate account or trust a specific amount or specific property.

(b) No consolidation, severance, or segregation may be made if the result impairs the rights of any beneficiary or adversely affects achievement of the material purposes of the subject trust or trusts.

(c) A severance or consolidation may be made for any reason including to reflect a partial disclaimer, to reflect differences in perpetuities periods, to reflect or result in differences in federal or state tax attributes, to satisfy any federal tax requirement or election, or to reduce potential generation-skipping transfer tax liability, and shall be made in a manner consistent with the rules governing disclaimers, federal tax attributes, requirements or elections, or any applicable federal or state tax rules or regulations.

(d) A separate account or trust created by severance or segregation:

(1) shall be treated as a separate trust for all purposes on and after the effective date of the severance or segregation; and
(2) shall be held on terms and conditions that are substantially equivalent to the terms of the trust from which it was severed or segregated so that the aggregate interests of each beneficiary in the several trusts are substantially equivalent to the beneficiary's interests in the trust before severance, except that any terms of the trust before severance that would affect the perpetuities period or qualification of the trust for any federal or state tax deduction, exclusion, election, exemption, or other special federal or state tax status must remain identical in each of the separate trusts created.

(e) Income earned on a severed or segregated amount or property after severance or segregation occurs shall pass to the designated taker of the amount or property.

(f) In managing, investing, administering, and distributing the trust property of any separate account or trust and in making applicable federal or state tax elections, the trustee may consider the differences in federal or state tax attributes and all other factors the trustee believes pertinent and may make disproportionate distributions from the separate accounts or trusts.

(Source: P.A. 101-48, eff. 1-1-20.)

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