1
Virtual Representation Statutes Chart
Revised July 1, 2016
This chart is maintained for the ACTEC Website and is updated regularly. Any comments on the
chart or new developments that should be reflected on the chart may be sent to
[email protected].
Alabama
Alaska
Arizona
Arkansas
A. Has the state adopted a "virtual
representation" statute?
Yes
Yes
Yes
Yes
1. Is the statute based on the UTC?
Yes
No
Yes
Yes
2. What is the statutory citation?
A
LA
.
C
ODE
§ 19-3B-304
A
LASKA
S
TAT
.
§ 13.06.120
A
RIZ
.
R
EV
.
S
TAT
.
A
NN
.
§ 14-1407
A
RK
.
C
ODE
A
NN
.
§ 28-73-304
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
Yes; but a parent
cannot represent
the child to
terminate or
modify the trust if
the parent is the
settlor
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
Yes
2
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
Yes
3
Yes
3
Yes
3
1. ward is a minor
Yes
Yes
Yes
3
Yes
3
2. ward is an incapacitated adult
Yes
Yes
Yes
3
Yes
4
3. Does this apply to conservators of
the estate and to guardians of the
person?
Estate and
Person
4
Estate and
Person
3
Estate and Person
3
Estate and
Person
4
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
5
Yes
4
Yes
4
Yes
5
1. a testamentary general power of
appointment
Yes
5
Yes
4
Yes
4
Yes
5
2. a non-testamentary general
power of appointment
Yes
6
Yes
4
Yes
4
No
3. a broad special power of
appointment
Yes
5
Yes
4
No
No
4. a limited special power of
appointment
Yes
5
Yes
4
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
Yes
Yes
2. incapacitated adults
Yes
Yes
Yes
Yes
3. unborn
Yes
Yes
Yes
Yes
4. unidentified/unlocatable
Yes
Yes
Yes
Yes
2
Alabama
Alaska
Arizona
Arkansas
5. other
No
No
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
5
Yes
Yes
1. Is there a conflict of interest
exception?
Yes
No
Yes
Yes
2. Is there an adequacy of
representation test?
No
Yes
No
No
H. Does virtual representation include
vertical representation?
Expressly
included
7
No Provision
Implicit (UTC
approach)
5
Implicit (UTC
approach)
6
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
ALA. CODE § 19-
3B-111
No
Yes
ARIZ. REV. STAT.
§ 14-10111
6
Yes
ARK. CODE ANN.
§ 28-73-111
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
Any matter
involving a trust
Any matter
involving a trust
1. interpretation or construction
Yes
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes
Yes
4. trustee resignation/appointment
Yes
Yes
Yes
5. trustee compensation
Yes
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
Yes
7. trustee’s liability
Yes
Yes
Yes
8. other additions/exclusions
Yes
8
Yes
7
No
9. Is there a material purpose test?
Yes
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Yes
9
Not specified
Not specified
11. Must the agreement be one a
court could enter?
Yes
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
10
Interested persons
Interested
persons
7
1. Is it the same or different than
UTC section 111(a)?
Same
Different definition
of “interested
persons”
8
Same
2. Is the trustee a necessary party?
No
Dependent on the
particular
proceeding
8
No
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
9
No limitation
specified
3
California
Colorado
Connecticut
A. Has the state adopted a "virtual
representation" statute?
No
Yes (formal
proceedings)
Yes
1. Is the statute based on the UTC?
No
No
2. What is the statutory citation?
C
OLO
.
R
EV
.
S
TAT
.
§ 15-10-403
C
ONN
.
G
EN
.
S
TAT
.
§ 45a-487a
EL
ODE
NN
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Not specified
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
2
Yes
3
1. ward is a minor
Yes
3
Yes
4
2. ward is an incapacitated adult
Yes
3
No
4
3. Does this apply to conservators
of the estate and to guardians of
the person?
Estate and
Person
Estate and Person
5
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
6
1. a testamentary general power of
appointment
No
4
Yes
2. a non-testamentary general
power of appointment
Yes
4
Yes
3. a broad special power of
appointment
No
Yes
4. a limited special power of
appointment
No
Yes
F. Under virtual representation, what
individuals can be represented?
Yes
1. minors
Yes
Yes
2. incapacitated adults
Yes
Yes
3. unborn
Yes
Yes
4. unidentifiable/unlocatable
No
Yes
5. other
Yes
5
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
No
Yes
7
1. Is there a conflict of interest
exception?
Yes
Yes
2. Is there an adequacy of
representation test?
No Provision
No
H. Does virtual representation include
vertical representation?
No
No Provision
Included
4
I. Does the state statute allow nonjudicial
settlement agreements?
No
No
DEL. CODE ANN. tit.
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
4
California
Colorado
Connecticut
1. interpretation or construction
2. approval of a trustee’s report or
accounting
3. grant of power or direction to
refrain to a trustee
4. trustee resignation/appointment
5. trustee compensation
6. transfer of a trust’s place of
administration
7. trustee’s liability
8. other additions/exclusions
9. Is there a material purpose test?
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
11. Must the agreement be one a
court could enter?
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
1. Is it the same or different than
UTC section 111(a)?
2. Is the trustee a necessary party?
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
5
D.C.
Florida
Georgia
A. Has the state adopted a "virtual
representation" statute?
Yes
Yes
No
1. Is the statute based on the UTC?
Yes
Yes
2. What is the statutory citation?
D.C.
C
ODE
A
NN
.
§ 19-1303.04
F
LA
.
S
TAT
.
A
NN
.
§ 736.0304
(West)
AW
EV
TAT
§ 560-1-403
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
No
3
1. ward is a minor
Yes
3
n/a
2. ward is an incapacitated adult
Yes
3
n/a
3. Does this apply to conservators of
the estate and to guardians of the
person?
Estate and
Person
3
n/a
Person
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
(exceptions exist
with respect to
certain matters)
4
1. a testamentary general power of
appointment
Yes
4
Yes
4
2. a non-testamentary general
power of appointment
No
Yes
4
3. a broad special power of
appointment
Yes
4
Yes
4
4. a limited special power of
appointment
Yes
4
Yes
4
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
2. incapacitated adults
Yes
Yes
3. unborn
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
5. other
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
1. Is there a conflict of interest
exception?
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
5
Implicit (UTC
approach)
5
6
D.C.
Florida
Georgia
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
D.C.
CODE ANN.
§ 19-1301.11
Yes
F
LA. STAT. ANN.
§ 736.011 (West)
No
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
Any matter
involving a trust
with a few
restrictions
6
1. interpretation or construction
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes
4. trustee resignation/appointment
Yes
Yes
5. trustee compensation
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
7. trustee’s liability
Yes
Yes
8. other additions/exclusions
No
Yes
6
9. Is there a material purpose test?
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
Not specified
11. Must the agreement be one a
court could enter?
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
6
Interested
persons
7
1. Is it the same or different than
UTC section 111(a)?
Same
Different
definition of
“interested
persons”
7
2. Is the trustee a necessary party?
No
No
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
7
Idaho
Illinois
Indiana –
Probate Code
Indiana –
Trust Code
Iowa
A. Has the state adopted a "virtual
representation" statute?
Yes
Yes
Yes
Yes
Yes
1. Is the statute based on the UTC?
No
Yes
No
Yes
Yes
2. What is the statutory citation?
I
DAHO
C
ODE
§§ 15-8-205
and 15-1-
403
760 I
LL
.
C
OMP
.
STAT. 5/16.1
(effective
1/1/2010)
1
I
ND
.
C
ODE
§ 29-1-1-20
1
I
ND
.
C
ODE
§ 30-4-6-
10.5
1
I
OWA
C
ODE
§ 633A.6304
1
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes (may
represent a
minor for limited
purposes)
2
Yes
2
Yes
2
Yes
2
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Not
specified
Not specified
3
Not specified
Yes
3
Not specified
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
2
Yes
Not
specified
3
Yes
4
Yes (guardian
of property)
3
1. ward is a minor
Yes
3
Yes
4
Not specified
Not specified
Yes
3
2. ward is an incapacitated adult
Yes
3
Yes (disabled)
4
Not specified
Not specified
Yes
3
3. Does this apply to conservators of
the estate and to guardians of the
person?
Estate and
Person
Estate and
Person
4
Not specified
Not specified
Estate
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
5
Yes
4
Yes
5
Yes
4
1. a testamentary general power of
appointment
No
4
Not specified
No
Yes
Yes
5
2. a non-testamentary general
power of appointment
Yes
4
Not specified
Yes
Yes
Yes
6
3. a broad special power of
appointment
No
4
Not specified
No
No
No
4. a limited special power of
appointment
No
4
Not specified
No
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
No
Yes
Yes
5
Yes
Yes
2. incapacitated adults
No
Yes (disabled)
Yes
5
Yes
Yes
7
3. unborn
Yes
Yes
Yes
5
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
Yes
5
Yes
Yes
5. other
No
No
Yes
5
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
5
Yes
Yes
5
Yes
6
Yes
8
1. Is there a conflict of interest
exception?
No
Yes
No
6
Yes
No
9
2. Is there an adequacy of
representation test?
Yes
No
Yes
No
Yes
H. Does virtual representation include
vertical representation?
No Provision
Implicit (UTC
approach)
6
No
Implicit(UTC
approach)
7
Implicit (UTC
approach)
10
I. Does the state statute allow nonjudicial
Yes
6
Yes
No
No
Yes
8
Idaho
Illinois
Indiana –
Probate Code
Indiana –
Trust Code
Iowa
settlement agreements?
IDAHO CODE
§ 15-8-302
760 ILL. COMP.
STAT. 5/16.1(d)
IOWA CODE
§ 633A.6308
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter,
except
certain
trusts for
minors/inca
pacitated
Any matter
involving a trust
Any matter
involving a
trust except a
modification
or termi-
nation of a
trust under
Iowa Code §
633A.2203
1. interpretation or construction
Yes
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes (only grant;
not direction to
refrain)
Yes
4. trustee resignation/appointment
Yes
Yes
Yes
5. trustee compensation
Yes
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
Yes
7. trustee’s liability
Yes
Yes (or
indemnification)
Yes
8. other additions/exclusions
Yes
7
Yes
7
No
9. Is there a material purpose test?
No
No (except for
termination)
6
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not
specified
Not specified
Not specified
11. Must the agreement be one a
court could enter?
Not
specified
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
All persons
interested in
the estate
or trust
8
Interested
persons
Interested
Persons
11
1. Is it the same or different than
UTC section 111(a)?
Different
Different
definition of
“interested
persons”
8
Same
2. Is the trustee a necessary party?
Yes
8
Yes
8
No
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
Yes
Yes
9
Yes
9
Kansas
Kentucky
Louisiana
Maine
A. Has the state adopted a "virtual
representation" statute?
Yes
No
No
Yes
1. Is the statute based on the UTC?
Yes
Yes
2. What is the statutory citation?
K
AN
.
S
TAT
.
A
NN
.
§ 58a-304
M
E
.
R
EV
.
S
TAT
.
A
NN
.
tit. 18B § 304
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
Yes
3
1. ward is a minor
Yes
3
Yes
3
2. ward is an incapacitated adult
Yes
3
Yes
3
3. Does this apply only to
conservators of the estate and to
guardians of the person?
Person
3
Estate and Person
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
4
1. a testamentary general power of
appointment
Yes
4
Yes
4
2. a non-testamentary general
power of appointment
No
No
3. a broad special power of
appointment
No
No
4. a limited special power of
appointment
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
2. incapacitated adults
Yes
Yes
3. unborn
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
5. other
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
1. Is there a conflict of interest
exception?
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
5
Implicit (UTC
approach)
5
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
KAN. STAT. Ann.
§ 58a-111
Yes
ME. REV. STAT. ANN.
tit.18B §§ 111, 411
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Certain
enumerated
Any matter
involving a trust
10
Kansas
Kentucky
Louisiana
Maine
matters
6
1. interpretation or construction
No
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
3. grant of power or direction to
refrain to a trustee
No
Yes
4. trustee resignation/appointment
Yes
Yes
5. trustee compensation
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
7. trustee’s liability
Yes
Yes
8. other additions/exclusions
Yes
6
No
9. Is there a material purpose test?
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
Yes
11. Must the agreement be one a
court could enter?
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
7
Interested
persons
6
1. Is it the same or different than
UTC section 111(a)?
Same
Same
2. Is the trustee a necessary party?
No
No
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
11
Maryland
Michigan
Minnesota
A. Has the state adopted a "virtual
representation" statute?
No
Yes
Yes
1. Is the statute based on the UTC?
Yes
No
2. What is the statutory citation?
ASS
EN
AWS
190B, § 1-403
2009 Mich. Pub. Acts
46 § 7304 (effective
April 2010)
M
INN
.
S
TAT
.
§ 501B.155
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Not specified
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
1
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
Yes
2
1. ward is a minor
Yes
3
Yes
3
2. ward is an incapacitated adult
Yes
3
Yes
3
3. Does this apply to conservators of
the estate and to guardians of the
person?
Person
Estate and
Person
3
Estate and Person
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
4
1. a testamentary general power of
appointment
Yes
4
No
4
2. a non-testamentary general
power of appointment
Yes
4
Yes
4
3. a broad special power of
appointment
Yes- for some
things
4
No
4
4. a limited special power of
appointment
Yes- for some
things
4
No
4
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
2. incapacitated adults
Yes
Yes
3. unborn
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
5. other
No
Yes (under a
disability)
5
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
5
1. Is there a conflict of interest
exception?
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
5
No Provision
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
2009 Mich. Pub. Acts
46 § 7111
Yes
MINN. STAT.
§ 501B.154
12
Maryland
Michigan
Minnesota
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
with a few
restrictions
The approval of a
trustee’s
accounting,
trustee
resignation,
determination of
trustee
compensation,
transfer of trust
situs and certain
terminations of
noncharitable
trusts. See
footnote 6.
1. interpretation or construction
Yes
No
2. approval of a trustee’s report or
accounting
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
No
4. trustee resignation/appointment
Yes
Yes (resignation
only)
5. trustee compensation
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
7. trustee’s liability
Yes
No
8. other additions/exclusions
Yes
6
Yes
6
9. Is there a material purpose test?
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
No (except
termination)
6
11. Must the agreement be one a
court could enter?
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
Persons
7
Trustee and all
beneficiaries of a
trust not under
court supervision
1. Is it the same or different than
UTC section 111(a)?
Same
Different (more
limited)
2. Is the trustee a necessary party?
No
Yes
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
13
Mississippi
Missouri
Montana
A. Has the state adopted a "virtual
representation" statute?
No
Yes
Yes
1. Is the statute based on the UTC?
Yes
No
2. What is the statutory citation?
M
O
.
R
EV
.
S
TAT
.
§ 456.3-304
M
ONT
.
C
ODE
A
NN
.
§ 72-1-303
EB
EV
TAT
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Not specified
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
Yes
2
1. ward is a minor
Yes
3
Yes
3
2. ward is an incapacitated adult
Yes
3
Yes
3
3. Does this apply to conservators of
the estate and to guardians of the
person?
Estate and
Person
3
Estate and Person
Person
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
4
1. a testamentary general power of
appointment
Yes
4
No
2. a non-testamentary general
power of appointment
No
Yes
3. a broad special power of
appointment
Yes (special
testamentary)
4
No
4. a limited special power of
appointment
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
No
2. incapacitated adults
Yes
No
3. unborn
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
5. other
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
5
Yes
5
1. Is there a conflict of interest
exception?
Yes
No
2. Is there an adequacy of
representation test?
No
Yes
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
5
No Provision
approach)
5
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
MO. REV. STAT.
§ 456.1-111
No
NEB. REV. STAT.
14
Mississippi
Missouri
Montana
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
with a few
restrictions
involving a trust
with a few
1. interpretation or construction
Yes
2. approval of a trustee’s report or
accounting
Yes
3. grant of power or direction to
refrain to a trustee
Yes
4. trustee resignation/appointment
Yes
5. trustee compensation
Yes
6. transfer of a trust’s place of
administration
Yes
7. trustee’s liability
Yes
8. other additions/exclusions
Yes
6
9. Is there a material purpose test?
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
material
6
11. Must the agreement be one a
court could enter?
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
7
persons
7
1. Is it the same or different than
UTC section 111(a)?
Same
2. Is the trustee a necessary party?
No
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
specified
15
Nevada
New Hampshire
New Jersey
A. Has the state adopted a "virtual
representation" statute?
Yes (effective
Oct. 1, 2009)
Yes
Yes
1. Is the statute based on the UTC?
No
Yes
Yes
2. What is the statutory citation?
N
EV
.
R
EV
.
S
TAT
.
ANN. §164.038
N.H.
R
EV
.
S
TAT
.
ANN.
§ 564-B:3-301
through 305
N.J. Stat.
§ 3B:31-13
through 17
TAT
NN
§ 46A-3-304
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
2
Yes- and can also
represent an
incapacitated
child
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Not specified
Yes
2
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
Yes
3
Yes
3
1. ward is a minor
Yes
3
Yes
3
Yes
2. ward is an incapacitated adult
Yes
3
Yes
3
Yes
3. Does this apply to conservators
of the estate and to guardians of the
person?
Estate
3
Estate and
Person
3
Yes
Person
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Not specified
Yes
4
Yes
4
1. a testamentary general power of
appointment
Not specified
Yes
4
Yes
2. a non-testamentary general
power of appointment
Not specified
No
No
3. a broad special power of
appointment
Not specified
No
No
4. a limited special power of
appointment
Not specified
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
Yes
2. incapacitated adults
Yes
Yes
Yes
3. unborn
Yes
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
Yes
5. other
No
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
4
Yes
Yes
5
1. Is there a conflict of interest
exception?
Yes
4
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
No
H. Does virtual representation include
vertical representation?
Expressly
Included
5
Implicit (UTC
approach)
5
Yes
6
5
16
Nevada
New Hampshire
New Jersey
I. Does the state statute allow nonjudicial
settlement agreements?
Yes (effective
October 1, 2015)
SB 464, Sec. 61-
62
Yes
N.H. REV. STAT.
ANN.
§ 564-B:1-111
Yes
N.J. Stat. 3B:31-11
N.M. STAT. ANN.
§ 46A-1-111
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
6
Any matter
involving a trust
7
involving a trust
1. interpretation or construction
Yes
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes
Yes
4. trustee resignation/appointment
Yes
Yes
Yes
5. trustee compensation
Yes
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
Yes
7. trustee’s liability
Yes
Yes
Yes
8. other additions/exclusions
Yes
6
Yes
7
Yes
8
9. Is there a material purpose test?
Yes
Yes
Yes
9
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
Not specified
8
No
10
11. Must the agreement be one a
court could enter?
Yes
Yes
Maybe
8
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Indispensible
parties
7
Interested
persons
Interested
persons
11
persons
6
1. Is it the same or different than
UTC section 111(a)?
Different
Different
definition of
“interested
persons”
9
Same
2. Is the trustee a necessary party?
Yes
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
No limitation
specified
specified
17
New York
North Carolina
North Dakota
Ohio
A. Has the state adopted a "virtual
representation" provision?
Yes
Yes
Yes
Yes
1. Is the statute based on the UTC?
No
Yes
Yes
Yes
2. What is the statutory citation?
N.Y.
S
URR
.
C
T
.
PROC. ACT § 315
N.C.
G
EN
.
S
TAT
.
§ 36C-3-304
N.D.
C
ENT
.
C
ODE
§ 59-11-04
O
HIO
R
EV
.
C
ODE
ANN.
§ 5803.01
through 5803.05
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
No
Yes; if a
disagreement
arises between
parents-
representation
will be granted
first to the
beneficiary of
the trust, then to
the lineal
descendant, or
to the guardian
ad litem
1
Yes; if a
disagreement
arises between
parents-
representation will
be granted first to
the beneficiary of
the trust, then to
the lineal
descendant, or to
the guardian ad
litem
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
No
Yes
2
Yes
2
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
No
No
3
Yes
3
Yes
3
1. ward is a minor
n/a
n/a
Yes
3
Yes
3
2. ward is an incapacitated adult
n/a
n/a
Yes
3
Yes
3
3. Does this apply to conservators of
the estate and to guardians of the
person?
n/a
n/a
Estate and Person
3
Yes
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
1
Yes
4
Yes
4
Yes
4
1. a testamentary general power of
appointment
Yes
1
Yes
4
Yes
4
Yes
4
2. a non-testamentary general
power of appointment
Yes
1
Yes
4
Yes
4
No
3. a broad special power of
appointment
Yes
1
No
No
No
4. a limited special power of
appointment
Yes
1
No
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
No
Yes
Yes
Yes
2. incapacitated adults
No
Yes
(incompetent)
Yes
Yes
3. unborn
Yes
2
Yes
Yes
Yes
4. unidentifiable/unlocatable
Yes
(unascertained)
2
Yes
Yes
Yes
5. other
Persons under
disability if the
No
No
No
18
New York
North Carolina
North Dakota
Ohio
trust instrument
provides
3
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
No
(“the same”)
4
Yes
Yes
Yes
1. Is there a conflict of interest
exception?
No
Yes
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
No
No
H. Does virtual representation include
vertical representation?
Expressly
included
5
Implicit (UTC
approach)
5
Implicit (UTC
approach)
5
Implicit (UTC
approach)
5
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
N.Y.
SURR. CT.
P
ROC. ACT
§ 315(8)
Yes
N.C. GEN. STAT.
§ 36C-1-111
Yes
N.D. CENT. CODE
§ 59-09-11
Yes
OHIO REV. CODE
ANN. § 5801.10
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Settling the
accounts of
fiduciaries
Certain
enumerated
matters
involving a trust
Any matter
involving a trust
Any matter
involving a trust
with a few
restrictions
6
1. interpretation or construction
No
No
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
Yes
Yes
3. grant of power or direction to
refrain to a trustee
No
Yes
Yes
Yes
4. trustee resignation/appointment
No
Yes
Yes
Yes
5. trustee compensation
No
Yes
Yes
Yes
6. transfer of a trust’s place of
administration
No
Yes
Yes
Yes
7. trustee’s liability
No
Yes (only applies
to actions taken
under above
categories)
Yes
Yes
8. other additions/exclusions
No
Yes
6
Yes
6
Yes
6
9. Is there a material purpose test?
No
Yes
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
Not specified
Expressly a
material purpose
7
No
11. Must the agreement be one a
court could enter?
No
Yes
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
No
Yes
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
All persons whom
service of process
would be
required in a
judicial
proceeding
6
Interested
persons
7
Interested persons
The settlor; all
beneficiaries; all
currently serving
trustees;
creditors if their
interests are
affected
7
19
New York
North Carolina
North Dakota
Ohio
1. Is it the same or different than
UTC section 111(a)?
Different
language
6
Same
Different definition
of “interested
persons”
8
Different-
specifies the
particular
parties
7
2. Is the trustee a necessary party?
No
No
Yes
8
Yes
7
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
Unknown
7
No limitation
specified
No limitation
specified
No
8
20
Oklahoma
Oregon
Pennsylvania
Rhode Island
A. Has the state adopted a "virtual
representation" statute?
No
Yes
Yes
Yes
1. Is the statute based on the UTC?
Yes
No
No
2. What is the statutory citation?
O
R
.
R
EV
.
S
TAT
.
§ 130.115
20
P
A
.
C
ONS
.
S
TAT
.
§§ 7721-7726
R.I.
G
EN
.
L
AWS
§ 33-22-17
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
Not specified
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
Not specified
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
No
3
Yes
3
Not specified
1. ward is a minor
Yes
4
Unspecified
3
Not specified
2. ward is an incapacitated adult
Yes
4
Unspecified
3
Not specified
3. Does this apply to conservators of
the estate and to guardians of the
person?
Conservators
only
4
Estate
3
Not specified
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
5
Yes
4
Not specified
1. a testamentary general power of
appointment
Yes
5
Yes
4
Not specified
2. a non-testamentary general
power of appointment
No
Yes
4
Not specified
3. a broad special power of
appointment
No
Yes
4
Not specified
4. a limited special power of
appointment
No
Yes
4
Not specified
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
Yes
2. incapacitated adults
Yes
No
Yes
3. unborn
Yes
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
Yes
5. other
No
6
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
5
Yes
1
1. Is there a conflict of interest
exception?
Yes
7
Yes
6
Yes
1
2. Is there an adequacy of
representation test?
No
Yes
7
Yes
1
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
7
Expressly
included
8
No Provision
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
OR. REV. STAT.
§ 130.045
Yes
20 PA. CONS. STAT.
§ 7710.1
No
21
Oklahoma
Oregon
Pennsylvania
Rhode Island
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
Any matter
involving a trust
1. interpretation or construction
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes
4. trustee resignation/appointment
Yes
Yes
5. trustee compensation
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
7. trustee’s liability
Yes
Yes
8. other additions/exclusions
Yes
8
Yes
9
9. Is there a material purpose test?
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Presumed
material
Not specified
10
11. Must the agreement be one a
court could enter?
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
All beneficiaries
and trustees of
the trust
11
1. Is it the same or different than
UTC section 111(a)?
Different
definition of
“interested
persons”
9
Different
2. Is the trustee a necessary party?
Yes
9
Yes
11
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
22
South Carolina
South Dakota
Tennessee
Texas
A. Has the state adopted a "virtual
representation" statute?
Yes
Yes
Yes
Yes (in formal
proceedings)
1. Is the statute based on the UTC?
Yes
No
Yes
No
2. What is the statutory citation?
S.C.
C
ODE
A
NN
.
§ 62-7-304
S.D.
C
ODIFIED
L
AWS
§ 55-3-24
through 38
T
ENN
.
C
ODE
A
NN
.
§ 35-15-304
T
EX
.
P
ROP
.
C
ODE
ANN. § 115.013
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes- but has the
lowest priority
1
Yes
1
Yes
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
Yes
2
Yes
2
D. Does virtual representation allow a court
appointed guardian to represent his or her
ward?
Yes
3
Yes
Yes
3
Yes
3
1. ward is a minor
Yes
3
Yes
3
Yes
3
Yes
4
2. ward is an incapacitated adult
Yes
3
Yes
4
Unclear
3
Yes
4
3. Does this apply to conservators of
the estate and to guardians of the
person?
Estate and
Person
3
Estate and
Person
5
Estate
(for disabled)
and
Person
(for minors)
3
Estate
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
6
Yes
4
Yes
5
1. a testamentary general power of
appointment
Yes
4
Yes
6
Yes
4
No
2. a non-testamentary general power
of appointment
Yes
4
Yes
6
No
Yes
5
3. a broad special power of
appointment
No
Yes
6
No
No
4. a limited special power of
appointment
No
Yes
6
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Not specified
Yes
Yes
2. incapacitated adults
Yes
Not specified
Yes
Yes
3. unborn
Yes
Yes
Yes
Yes
4. unidentified/unlocatable
Yes
Yes
Yes
Yes
5. other
No
No
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
No
7
Yes
Yes
6
1. Is there a conflict of interest
exception?
Yes
n/a
Yes
No
2. Is there an adequacy of
representation test?
Yes
5
n/a
No
Yes
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
6
n/a
Implicit (UTC
approach)
5
Not specified
23
South Carolina
South Dakota
Tennessee
Texas
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
S.C. CODE ANN.
§ 62-7-111
Yes
S.D. CODIFIED LAWS
§ 55-3-24
Yes
TENN. CODE ANN.
§ 35-15-111
Yes
TX. PROP. CODE.
§ 114.032 (b)-(e)
J. If yes, what matters can be solved by
nonjudicial settlement agreements?
Certain
enumerated
matters
Modification or
termination
Any matter
involving a trust
1. interpretation or construction
No
Not specified
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
8
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Not specified
Yes
4. trustee resignation/appointment
Yes
Not specified
Yes
5. trustee compensation
Yes
Not specified
Yes
6. transfer of a trust’s place of
administration
Yes
Not specified
Yes
7. trustee’s liability
Yes
Not specified
Yes
8. other additions/exclusions
Yes
7
Not specified
Yes
6
9. Is there a material purpose test?
No
Yes
9
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
N/a (because no
material purpose
test)
N/a
Not specified
11. Must the agreement be one a
court could enter?
No
Not specified
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
Not specified
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
8
Not specified
Trustee and
qualified
beneficiaries
7
1. Is it the same or different than
UTC section 111(a)?
Same
Different
Different
2. Is the trustee a necessary party?
No
Presumably
Yes
7
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
Yes (those not
under court
supervision)
No limitation
specified
24
Utah
Vermont
Virginia
Washington
A. Has the state adopted a "virtual
representation" provision?
Yes
Yes
Yes
Yes
1. Is the statute based on the UTC?
Yes
Yes
Yes
No
2. What is the statutory citation?
U
TAH
C
ODE
A
NN
.
§ 75-7-304
V
T
.
S
TAT
.
A
NN
. tit.
14A, § 304
V
A
.
C
ODE
A
NN
.
§ 64.2-717
W
ASH
.
R
EV
.
C
ODE
A
NN
.
§ 11.96A.120
1
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
Yes
1
Yes
2
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
Yes
2
Yes
3
D. Does virtual representation allow a court
appointed guardian to represent his or her
ward?
Yes
3
Yes
3
Yes
3
Yes
4
1. ward is a minor
Yes
3
Yes
4
Yes
3
Not specified
2. ward is an incapacitated adult
Yes
3
Yes
4
Yes
3
Yes
4
3. Does this apply to conservators of
the estate and to guardians of the
person?
Estate and
Person
3
Estate and
Person
Estate and
Person
3
Estate and Person
4
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
Yes
5
Yes
4
Yes
5
1. a testamentary general power of
appointment
Yes
4
Yes
Yes
4
Yes
2. a non-testamentary general
power of appointment
No
No
No
Yes
3. a broad special power of
appointment
No
No
No
Yes
4. a limited special power of
appointment
No
No
No
Yes
5
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
Yes
Yes
2. incapacitated adults
Yes
Yes
Yes
Yes
3. unborn
Yes
Yes
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
Yes
Yes
5. other
No
No
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
6
Yes
Yes
6
1. Is there a conflict of interest
exception?
Yes
Yes
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
No
No
H. Does virtual representation include
vertical representation?
Implicit (UTC
approach)
5
Implicit (UTC
Approach)
7
Implicit (UTC
approach)
5
Yes
7
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
UTAH CODE ANN.
§ 75-7-110
Yes
VT. STAT. ANN. tit.
14A, § 111
Yes
VA. CODE ANN.
§ 64.2-709
Yes
8
WASH. REV. CODE
ANN. § 11.96A.220
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
Any matter
involving a trust
Any matter
involving a trust
Any matter,
except certain
25
Utah
Vermont
Virginia
Washington
trusts for minors/
incapacitated
1. interpretation or construction
Yes
Yes
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes
Yes
Yes
4. trustee resignation/appointment
Yes
Yes
Yes
Yes
5. trustee compensation
Yes
Yes
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
Yes
Yes
7. trustee’s liability
Yes
Yes
Yes
No
8. other additions/exclusions
No
No
No
Yes
9
9. Is there a material purpose test?
Yes
Yes
Yes
No
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
Not specified
Not specified
Not specified
11. Must the agreement be one a
court could enter?
Yes
Yes
Yes
Not specified
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
No
No
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
6
Interested
persons
8
Interested
persons
6
All persons
interested in the
estate or trust
10
1. Is it the same or different than
UTC section 111(a)?
Same
Same
Same
Different
2. Is the trustee a necessary party?
No
No
No
Yes
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
No limitation
specified
Yes
26
West Virginia
Wyoming
A. Has the state adopted a "virtual
representation" provision?
Yes
Yes
1. Is the statute based on the UTC?
Yes
Yes
2. What is the statutory citation?
W.
V
A
.
C
ODE
A
NN
.
§ 44D-3-304
IS
TAT
§ 701.15 (circuit
court); W
IS. STAT.
§ 879.23(5)
W
YO
.
S
TAT
.
A
NN
.
§ 4-10-304
NIF
RUST
ODE
§ 304
B. Does virtual representation allow a
parent to represent a minor or unborn
child?
Yes
1
Yes
1
C. Does an agent under the power of
attorney have the authority to represent
the principal?
Yes
2
Yes
2
D. Does virtual representation allow a
court appointed guardian to represent his
or her ward?
Yes
3
Yes
3
1. ward is a minor
Yes
Yes
3
2. ward is a incapacitated adult
Yes
Yes
3
3. Does this apply to conservators
of the estate and to guardians of the
person?
Estate and Person
3
Estate and
Person
3
Person
3
E. Does virtual representation allow the
holder of the power of appointment to
represent all potential appointees?
Yes
4
1
Yes
4
1. a testamentary general power of
appointment
Yes
4
Yes
4
2. a non-testamentary general
power of appointment
No
No
3. a broad special power of
appointment
No
No
4. a limited special power of
appointment
No
No
F. Under virtual representation, what
individuals can be represented?
1. minors
Yes
Yes
2. incapacitated adults
Yes
Yes
3. unborn
Yes
Yes
4. unidentifiable/unlocatable
Yes
Yes
5. other
No
No
G. Does virtual representation include
representation by someone with a
“substantially identical interest”?
Yes
Yes
1. Is there a conflict of interest
exception?
Yes
Yes
2. Is there an adequacy of
representation test?
No
No
27
West Virginia
Wyoming
H. Does virtual representation include
vertical representation?
Implicit(UTC
Approach)
5
Implicit (UTC
approach)
5
I. Does the state statute allow nonjudicial
settlement agreements?
Yes
W. VA. CODE ANN.
§44D-1-111
Yes
WYO. STAT. ANN.
§ 4-10-111
UNIF. TRUST CODE
J. If yes, what matters can be resolved by
nonjudicial settlement agreements?
Any matter
involving a trust
Any matter
involving a trust
1. interpretation or construction
Yes
Yes
2. approval of a trustee’s report or
accounting
Yes
Yes
3. grant of power or direction to
refrain to a trustee
Yes
Yes
4. trustee resignation/appointment
Yes
Yes
5. trustee compensation
Yes
Yes
6. transfer of a trust’s place of
administration
Yes
Yes
7. trustee’s liability
Yes
Yes
8. other additions/exclusions
Yes
6
Yes
6
9. Is there a material purpose test?
Yes
Yes
10. Is a spendthrift provision
expressly presumed to not be a
material purpose?
Not specified
Expressly not a
material
purpose
6
11. Must the agreement be one a
court could enter?
Yes
Yes
12. Does the statute expressly
address whether the trustee may be
removed by agreement of the
beneficiaries?
No
7
No
K. In a nonjudicial settlement agreement,
who are the necessary parties who must
sign the agreement?
Interested
persons
8
Interested
persons
7
persons
6
1. Is it the same or different than
UTC section 111(a)?
Same
Different
definition of
“interested
persons”
7
2. Is the trustee a necessary party?
No
Yes
7
L. Does the nonjudicial settlement
agreement provision apply to all trusts?
No limitation
specified
No limitation
specified
specified
28
DEFINITIONS
1. General Power of Appointment: a power exercisable in favor of the holder of the power, the power holder’s
creditors, the power holder’s estate, or the creditors of the power holder’s estate
2. Broad Special Power of Appointment: a power exercisable in favor of anyone other than the holder of the
power, the power holder’s creditors, the power holder’s estate, or the creditors of the power holder’s estate
3. Limited Special Power of Appointment: a power exercisable in favor of a limited class of persons, such as the
descendants of a named person
4. Vertical Representation: the representative has a superior beneficial interest that binds other beneficiaries that
have a future, contingent, or other lesser interest
ALABAMA
1
Along with allowing a parent to represent a child, a grandparent or other direct ancestor may represent a
grandchild in those instances where a conflict of interest exists between the parent and the child. A
LA. CODE § 19-
3B-303(6).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 19-3B-303(3).
3
A guardian may represent and bind the ward if a conservator of the ward’s estate has not been appointed. Id.
§ 19-3B-303(2).
4
A “guardian” is defined as a person who has qualified as a guardian of a minor or incapacitated person, and a
“conservator” is defined in the same provision as a person who has been appointed by the court to administer the
estate of a minor or adult. Id. § 19-3B-103.
5
Id. § 19-3B-302(b) is substantially the same provision as § 302 of the UTC except that it allows the holder of any
power of appointment other than a lifetime power to appoint to oneself to represent and bind persons whose
interests, as permissible appointees, takers in default or otherwise, are subject to the power as long as there is no
conflict of interest. Id. § 19-3B-302 Comment.
6
Id. § 19-3B-302(a). The code adds a provision which creates “a class of holders of a power of appointment who
can bind any person by virtue of the fact that this particular class of holders has immediate access to the property
that is subject to the power of appointment. This class of holders has a broader power of representation in that
the condition that there be no conflict is not applicable.” Id. § 19-3B-302 cmt. While the power described in
§ 19-3B-302(a) is a non-testamentary general power of appointment, §19-3B-302(a) does not apply to all types of
non-testamentary general powers of appointment, such as a power to appoint to one’s creditors, etc.
7
Id. § 19-3B-304. This section is based on the UTC. While UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, Alabama expressly codifies the
vertical representation principle in § 19-3B-304(b) which states that “a presumptive remainder beneficiary may
represent contingent successor remainder beneficiaries” as long as there is no conflict of interest.
8
The Alabama Code adds § 19-3B-111(7) to its non-exclusive list of matters that may be resolved by a nonjudicial
settlement agreement to make it expressly clear that partial and final settlements may be done with a nonjudicial
settlement agreement even though many infer this from the UTC. Id. § 19-3B-111 cmt.
9
For trusts created on or after January 1, 2007, a spendthrift provision is not presumed to constitute a material
purpose of the trust. Id. § 19-3B-411(c).
10
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 19-3B-111(a)-(b).
ALASKA
1
ALASKA STAT. § 13.06.120(2)(B). To the extent there is no conflict of interest and no conservator or guardian has
been appointed, a parent may represent the minor child.
2
Id. § 13.06.120(2)(B). To the extent there is no conflict of interest, orders binding an agent having authority to act
with respect to the particular questions or dispute bind the principal.
3
Id. § 13.06.120(2)(B). Orders binding a guardian bind the ward if no conservator of the estate has been
appointed. Id. A guardian is a person who has qualified as a guardian of a minor or incapacitated person in
accordance with testamentary or court appointment, but excludes a person who is merely a guardian ad litem. Id.
at § 13.06.050(20).
29
4
Id. § 13.06.120(2)(A). Orders binding the holder of a general or non-general power of appointment bind other
persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
5
Id. § 13.06.120(2)(C). An unborn, a minor, an incapacitated, or a person whose identity or location is unknown or
not reasonably ascertainable who is not otherwise represented is bound by an order to the extent the interest is
adequately represented by another party having a substantially identical interest in the proceeding.
ARIZONA
1
The parent may represent and bind a minor or unborn child if a guardian or conservator has not been appointed;
however, in a departure from the UTC, if a parent is the settlor of the trust, the parent cannot represent the child
to consent to a modification or termination of that trust. A
RIZ. REV. STAT. § 14-1406(6).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 1406(3).
3
A guardian may represent and bind the ward if a conservator of the ward’s estate has not been appointed. Id.
§ 14-1406(2). In § 14-10103, a “guardian” is defined as a court appointed person to make decisions regarding the
support, care, education, health and welfare of a minor or an adult, and “conservator” is the court appointed
person charged with managing the estate of a protected person.
4
The holder of a general power of appointment, including a general testamentary power of appointment, may
represent and bind persons subject to the power. These persons include: permissible appointees, takers in
default, and otherwise. Id. § 14-1405. Unlike the UTC, representation is not limited to instances where there is no
conflict of interest.
5
Id. § 14-1407. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
The statute was amended in 2013 to update Section E, which states, “Unless the interested person…asks the
court to rule without regard to this subsection, the court may either approve the agreement or decline to approve
the agreement, but may not disapprove or deny the effectiveness of the agreement. If the court does not approve
the agreement pursuant to this subsection, the failure to approve is not any prejudice against the effectiveness of
the agreement and is not a final judgment or judicial precedent with respect to the agreement or subsequent
agreements pursuant to the section.” Id. § 14-10111(E).
7
Modification or termination of a trust as otherwise permitted pursuant to the trust instrument may not be
resolved by a nonjudicial settlement agreement. Id. § 14-10111.
8
The Arizona Trust Code uses a general definition for “interested person” as it relates to § 14-10111. The
definition “ includes any trustee, heir, devisee, child, spouse, creditor, beneficiary, person holding a power of
appointment and other person who has a property right in or claim against a trust estate or the estate of a
decedent, ward or protected person. ‘Interested person’ also includes a person who has priority for appointment
as personal representative and other fiduciaries representing interested persons. ‘Interested person,’ as the term
relates to particular persons, may vary from time to time and must be determined according to the particular
purposes of, and matter involved in, any proceeding.” Id. § 14-1201.
9
The statute was amended in 2013 to remove the language that previously restricted it to trusts that became
irrevocable after January 1, 2009. In addition, the statute applies to all of Title 14 of the Arizona Code, including
decedent’s estates.
ARKANSAS
1
Under ARK. CODE ANN. § 28-73-303(6). A parent may bind and represent his or her unborn or minor child if a
guardian has not been appointed.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 28-73-303(3).
3
Id. § 28-73-303 (2).
4
A guardian may represent and bind the ward if a conservator of the ward’s estate has not been appointed.
“Guardian” is defined in Id. § 28-73-103 as a person appointed by the court to have care and custody of the estate
of an incapacitated person, and “conservator” is defined in the same provision as the person appointed to
administer the estate of an individual who by reason of age or physical disability is unable to manage his or her
property.
30
5
The holder of a general testamentary power of appointment can represent all potential appointees, takers in
default or others subject to the power to the extent that there is no conflict of interest. Id. § 28-73-302.
6
Id. § 28-73-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
7
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 28-73-111.
COLORADO
1
COLO. REV. STAT. § 15-10-403(3)(c). If there is no conflict of interest and no conservator or guardian has been
appointed, a parent may represent their minor child.
2
The Colorado representation statute does not address representation by an agent under a power of attorney. Id.
§ 15-10-403. However, the Colorado power of attorney statute expressly allows the principal to give the agent
authority as to “claims and litigation.” Id. §15-14-735.
3
Id. § 15-10-403(3)(b). If there is no conflict of interest, orders binding a conservator bind the person whose estate
he controls. Additionally, orders binding a guardian bind the ward if no conservator of his estate has been
appointed.
4
Id. § 15-10-403(3)(b). A guardian is defined as a person who has qualified as a guardian of a minor or
incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian
ad litem. Id. § 15-10-201(23).
5
Id. § 15-10-403(3)(a). Orders binding the holder of a presently exercisable general power of appointment bind
other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
6
Id. § 15-10-403(3)(d). An unborn, unascertained, minor, or incapacitated person who is not otherwise
represented is bound by an order to the extent his or her interest is adequately represented by another party
having a substantially identical interest in the proceeding. The term “unascertained” appears to include persons
who are “unidentifiable,” but perhaps not those whose identity is known but who cannot be located.
7
An unborn, unascertained, minor or incapacitated person who is not otherwise represented is bound by an order
to the extent his or her interest is adequately represented by another party having a substantially identical interest
in the proceeding.
CONNECTICUT
1
CONN. GEN. STAT. § 45a-487c(6). Absent a conflict of interest, and if a conservator or guardian has not been
appointed, a parent may represent or bind the parent’s minor or unborn children.
2
Id. § 45a-487c(3). Absent a conflict of interest, an agent having authority to do so may represent and bind the
principal.
3
Id. § 45a-487c(2). A court-appointed conservator or guardian may represent or bind the ward or conserved
person if a conservator or guardian of the ward’s estate or conserved person’s estate has not been appointed.
4
Id. § 45a-487c(2). Guardianship is defined elsewhere in the code as meaning guardianship of the person of a
minor. Id. § 45a-604(5).
5
Id. § 45a-487c(1)-(2). This statute expressly allows virtual representation by the conservator or guardian of the
estate. It also expressly allows virtual representation by conservator or guardian of the person, provided that a
guardian or conservator of the ward’s estate has not been appointed.
6
Id. § 45a-487b. Provided there is no conflict of interest between the holder and the persons represented, this
section gives the holder of any power of appointment, whether or not presently exercisable, the ability to
represent all potential appointees. Additionally, the holder of the power of revocation or a general power of
appointment “shall represent the takers in default of the exercise thereof.” Id.
7
Id. § 45a-487d. In connection with trust matters, unless otherwise represented, a minor, incapacitated, or
unborn individual, or person whose identity of location is unknown and not reasonably ascertainable, may be
represented by and bound by another person having a substantially identical interest with respect to the particular
question or dispute, but only to the extent there is no conflict of interest between the representative and the
person being represented.
31
DELAWARE
1
DEL. CODE ANN. tit. 12, § 3547(c). A minor or incapacitated beneficiary ,who cannot otherwise be represented,
may be represented and bound by their custodial parent or parents, provided there is no material conflict of
interest.
2
Id. tit. 12, § 3547(c). A minor or incapacitated beneficiary, who cannot otherwise be represented, may be bound
and represented by a guardian of the property.
3
Id. tit. 12, § 3547(a). Unless otherwise represented, a minor, incapacitated, or unborn person, or a person whose
identity or location is unknown and not reasonably ascertainable, may for all purposes be represented by and
bound by another who has a substantially identical interest with respect to the particular question or dispute, but
only to the extent that there is no material conflict of interest.
4
Id. tit. 12, § 3547(b). A presumptive remainder beneficiary may represent and bind contingent successor
remainder beneficiaries in certain circumstances.
5
Section 3338(a) defines “interested person” as any person whose consent would be required for a binding
settlement approved by the Court of Chancery. Rule 101 of the Court of Chancery requires consent from (1)
trustees and other fiduciaries; (2) trust beneficiaries with a present interest and those whose interest would vest,
without regard to the exercise of powers of appointment, if the present interest terminated; (3) the settlor, if
living; (4) all other persons having an interest under the express terms of the trust, including holders of powers and
persons having other rights in a nonfiduciary capacity.
6
The nonjudicial settlement statute does not apply to trusts described in Title 12, Section 3541, which includes
trusts for a particular charitable purpose or noncharitable purpose. A noncharitable purpose is a purpose
described in Section 3555 (animal trusts) or 3556 (trusts without identifiable beneficiaries).
D.C.
1
Along with allowing parent representation, an individual may represent a grandchild or a more remote
descendant if the parent does not represent that child, and a “qualified beneficiary may represent and bind any
beneficiary who may succeed to the qualified beneficiary’s interest under the terms of the trust or pursuant to the
exercise of a power of appointment.” D.C.
CODE ANN. § 19-1303.03(7)-(8).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 19-1303.03(3).
3
A guardian may represent and bind the ward if a conservator of the ward’s estate has not been appointed. Id.
§ 19-1303.03(2). Under § 19-1301.03, a “guardian” is a person appointed by the court, a parent, or a spouse to
make decisions concerning the support, care, education, health and welfare of a minor or adult individual, and
“conservator” is a person appointed by the court to administer the estate of a minor or adult individual.
4
This provision is different from the UTC. The relevant code provision, entitled “Representation by Holder of
General Testamentary Power of Appointment” states that the holder of a power of appointment can represent
and bind those persons whose interests as permissible appointees or takers in default are subject to the power.
No other class of persons is included in this list. A qualified power under this provision is a power exercisable in
favor of 1) the power holder, the power holder’s estate, the power holder’s creditors and the creditors of the
power holder’s estate; or 2) all persons other than the power holder, the power holder’s estate, the power
holder’s creditors, and the creditors of the power holder’s estate. Id. § 19-1303.02.
5
Id. § 19-1303.04. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to the
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute. Also, while this clause is substantively the same as
the UTC, it adds the language “with respect to the particular question or dispute” to final sentence of the
paragraph.
6
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 19-1301.11.
FLORIDA
1
A parent may represent and bind his or her unborn or minor child if a guardian of the property for the minor child
has not been appointed. F
LA. STAT. ANN. § 736.0303(5) (West).
2
An agent with the authority to act may represent and bind the principal. Id. § 736.0303(2).
32
3
A guardian of the property may represent and bind the estate, but the section allowing a guardian to represent
and bind the ward is omitted from the Florida statute. Id. § 736.0303.
4
The holder of a power of appointment can represent and bind those who interests as permissible appointees,
takers in default and others who are subject to the power. Id. § 736.0302. The statute contains exceptions,
determining that the holder does not have the power of representation with respect to 1) a matter involving fraud
or bad faith by the trustee; 2) the power of the trustee to distribute the trust property; or 3) a power of
appointment held by a person while that person is the only trustee.
5
Id. § 736.0304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
A nonjudicial settlement may not be used to produce a result not authorized by other provisions of this code,
including, but not limited to, terminating or modifying a trust in an impermissible manner. Id. § 736.0111(3).
7
“Interested persons” is defined as persons whose interests would be affected by a settlement agreement. Id.
§ 736.0111(1).
HAWAII
1
HAW. REV. STAT. § 560-1-403(2)(B). If there is no conflict of interest and no conservator or guardian has been
appointed, a parent may represent the parent’s minor child.
2
Id. § 560-1-403(2)(B). To the extent there is no conflict of interest, orders binding a guardian bind the ward if no
conservator of the ward’s estate has been appointed.
3
Id. § 560-1-403(2)(B). A guardian is defined as a person who has qualified as a guardian of a minor or
incapacitated person pursuant to appointment by a parent, spouse, reciprocal beneficiary, or by the court but
excludes a guardian ad litem. Id. at § 560-5-102.
4
Id. § 560-1-403(2)(A). Orders binding the holder of a presently exercisable general power of appointment bind
other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
5
Id. § 560-1-403(2)(C). The statute allows an unborn or unascertained person, who is not otherwise represented,
to be bound by another with a substantially identical interest, to the extent that they are adequately represented.
IDAHO
1
IDAHO CODE § 15-1-403(b)(2). If there is no conflict of interest and no conservator or guardian has been
appointed, a parent may represent and bind his minor child.
2
Id. § 15-1-403(b)(2). To the extent there is no conflict of interest, orders binding a guardian bind the ward if no
conservator of his estate has been appointed.
3
Id. § 15-1-403(b)(2). A guardian is defined as a person who has qualified as a guardian of a minor or incapacitated
person pursuant to testamentary or court appointment, excluding a person who is merely a guardian ad litem. Id.
§ 15-1-201(21).
4
Id. § 15-1-403(b)(1). Orders binding the holder of a present exercisable general power of appointment bind other
persons to the extent their future interests (as objects, takers in default, or otherwise) are subject to the power.
5
Id. § 15-1-403(b)(3). An unborn or unascertained person who is not otherwise represented is bound by an order
to the extent his interest is adequately represented by another party having a substantially identical interest in the
proceeding.
6
This statute provides that §§ 15-8-301 through 305 shall be applicable to the resolution of any matter, with
certain exceptions regarding trusts for minors and incapacitated adults. Id. §§ 15-8-301 through 305. If all parties
agree to a resolution of any of applicable matter, they must put it into a signed written agreement, which will then
be binding and conclusive on all persons interested in the estate or trust. “Matter” is defined in the statute. Id.
§ 15-8-103.
7
Id. § 15-8-103. Nonjudicial settlement also pertains to questions, issues, or disputes regarding the determination
of any class of persons interested in the estate and the resolution of matters that could affect a nonprobate asset.
8
Id. § 15-8-103(4). Under the Probate Code, “persons interested in the estate or trust” includes the trustor, if
living, all persons beneficially interested in the estate or trust, persons holding powers over the trust or estate
assets, the attorney general in the case of any charitable trust where the attorney general would be a necessary
party to judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust.
33
ILLINOIS
1
Senate Bill 188 (“SB 188”), effective on January 1, 2010, amended the Trusts and Trustees Act (760 ILL. COMP. STAT.
5/X
), adding provisions from the UTC with some modifications.
2
760 ILL. COMP. STAT. 5/15 provides that a parent of a minor or other beneficiary under legal disability “for whose
estate no representative has been appointed, may act for the beneficiary in receiving and approving any account
of the trustee appointing a successor trustee and executing any receipt and receiving notice from the trustee.”
3
The Illinois statutory short form power of attorney for property authorizes an agent to “assert any interest in and
exercise any power over any trust, estate or property subject to fiduciary control.” 755 ILCS 45/3-4(n).
4
“If a person is represented by a court appointed guardian of the estate or, if none, by a court appointed guardian
of the person, the actions of such guardians shall represent and bind that [minor, disabled, unborn, unidentifiable
or unlocatable] person.” Id. 5/16.1(a)(1).
5
While the Illinois statute does not directly permit the holder of a power of appointment to represent all potential
appointees in 5/16.1, it indirectly does so. Id. 5/16.1(a)(2). In this subsection, a primary beneficiary may enter into
a binding agreement that affects all persons who have successor or contingent interests in the trust. A “primary
beneficiary” is a beneficiary who is either 1) eligible to receive income or principal from a trust, or 2) assuming
nonexercise of all powers of appointment, will be eligible to receive a distribution of the principal if he or she
survives to the final date of distribution.
6
Id. 5/16.1(a). This section is based on the UTC. While UTC § 304 makes it clear in its comments to this provision
that “substantially identical interests” include vertical representation, Illinois expressly codifies vertical
representation in 5/16.1(a)(2)-(3), allowing primary beneficiaries to bind all secondary beneficiaries and
presumptive remainder beneficiaries to bind other beneficiaries who have a successor, contingent, or other future
interest in the trust.
7
Illinois adds to the nonexclusive list of matters that may be resolved by a nonjudicial settlement agreement. The
additions are: “[1)] exercise or nonexercise of any power by a trustee; [2)] questions relating to property or an
interest in property held by the trust; [3)] resolution of disputes or issues related to administration, investment,
distribution or other matters; [4)] modification of the terms of the trust pertaining to administration of the trust;
[5)] termination of the trust, provided that court approval of such termination must be obtained in accordance
with (d)(5), and the court must conclude continuance of the trust is not necessary to achieve any material purpose
of the trust; upon such termination the court may order the trust properly distributed as agreed by the parties to
the agreement or otherwise as the court determines equitable consistent with the purposes of the trust.” Id.
5/16.1(d)(4).
8
“Interested persons” is defined as the trustee plus all persons whose consent or joinder would be required to
achieve a binding settlement were the settlement to be approved by a court. Id. 5/16.1(d)(1).
9
“On or after its effective date, this Section applies to all existing and future trusts, judicial proceedings, or
agreements entered into in accordance with this Section on or after the effective date.” Id. 5/16.1(e).
INDIANA PROBATE CODE
1
IND. CODE § 29-1-1-20 falls under the Indiana Probate Code and governs proceedings involving estates of
decedents or trusts and judicially supervised settlements. I
ND. CODE § 29-1-1-20(a).
2
Id. § 29-1-1-20(a)(3). If there is no conflict of interest and no guardian of the estate or person has been
appointed, a parent may represent the parent’s minor child.
3
Not specified, but presumably yes because IND. CODE § 29-1-1-20(c) provides for compensation of a guardian.
4
Id. § 29-1-1-20(a)(1). Orders binding the holder of a presently exercisable general power of appointment bind
other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
5
In a proceeding involving estates of decedents or trusts, or in judicially supervised settlements, an interested
person (A) who is incapacitated; (B) whose present name, existence, or residence upon diligent inquiry is unknown
and cannot be ascertained; or (C) who is not otherwise represented is bound by an order to the extent the
person's interest is adequately represented by another party having a substantially identical interest in the
proceeding. Id.
§ 29-1-1-20(a)(4). An adjudication is binding upon all interested persons, whether born or unborn,
whether notified or not notified, and whether represented or not, if the interested persons are of the same class
or have interests similar to the predominant interests of any person notified or represented. Id.
§ 29-1-1-20(d).
6
Id. § 29-1-1-20(a)(4). An interested person who is incapacitated, whose present name, existence or residence
upon diligent inquiry is unknown and cannot be ascertained, or who is not otherwise represented, is bound by an
34
order to the extent the person’s interest is adequately represented by another party having a substantially
identical interest in the proceeding.
INDIANA TRUST CODE
1
IND. CODE § 30-4-6-10.5 falls under the Indiana Trust Code, which applies to trusts as defined under IND. CODE § 30-
4-1-1.
2
IND. CODE § 30-4-6-10.5(a)(5) states, “a parent may represent and bind the parent's minor, unborn, or not yet
adopted child if a guardian for the child has not been appointed . . . .”
3
IND. CODE § 30-4-6-10.5(a)(2). This provision states, “an attorney in fact who has authority to act with respect to
the particular question or dispute may represent and bind the principal . . . .”
4
“[A] guardian may represent and bind the protected person who is subject to the guardianship . . . .” Id. § 30-4-6-
10.5(a)(1). There is no definition of “guardian” in the Indiana Trust Code.
5
“The holder of a general power of appointment, including a general testamentary power of appointment, may
represent and bind persons whose interests are subject to the power of appointment, including: (1) permissible
appointees; and (2) takers in default.” Id. § 30-4-6-10.5(b).
6
Under IND. CODE § 30-4-6-10.5(c), unless otherwise represented, a minor, an incapacitated person, an unborn or a
not yet adopted child, or a person whose identity or location is unknown and not reasonably ascertainable may be
represented by and bound by another person who has a substantially identical interest with respect to the
particular question or dispute, but only to the extent there is not a conflict of interest between the representative
and the person represented.
7
Id. § 30-4-6-10.5(c). This section is based on the UTC. UTC § 304 makes clear in its comments to the provision
that “substantially identical interests” include vertical representation. Therefore, it can be assumed that the same
applies to the Indiana statute as well, even though it is not explicitly stated.
IOWA
1
The 2010 Iowa Legislature effective April 14, 2010 enacted legislation to delete subsection 4 of IOWA CODE §
633A.6301, which previously allowed a represented person to object to the representation prior to its taking
effect.
2
Id. § 633A.6303. Provided there is no conflict of interest and no conservator has been appointed, a parent may
represent and bind a minor child.
3
Id. § 633A.6303. This section does not use the term guardian. However, it does allow a conservator to represent
and bind the person whose estate the conservator controls. A conservator is defined as a person appointed by a
court to manage the estate of a minor or adult individual.
4
Id.§ 633A.6302. The holder of a presently exercisable general power of appointment may represent and bind the
persons whose interests, as objects, takers in default, or otherwise, are subject to the power. Additionally, to the
extent there is no conflict of interest, persons whose interests are subject to a general testamentary power of
appointment may be represented and bound by the holder of the powers.
5
Id. § 633A.6302(2). To the extent there is no conflict of interest, persons whose interests are subject to a general
testamentary power of appointment may be represented and bound by the holder or holders of the power.
6
Id. § 633A.6302(1). The holder of presently exercisable general power of appointment may represent and bind
the persons whose interests, as objects, takers in default, or otherwise, are subject to the power.
7
Id. § 633A.6304. The provision uses the term “incompetent” as opposed to “incapacitated.”
8
Id. § 633A.6304. Unless otherwise represented, a minor or an incompetent, unborn, or unascertained person
may be represented by and bound by another person having a substantially identical interest with respect to the
fiduciary matter, but only to the extent that the person’s interest is adequately represented.
9
Although no explicit conflict of interest exception appears in § 633A.6304, a potential representative who has a
conflict of interest with a person whom the representative could otherwise virtually represent could not
adequately represent such person. Id. § 633A.6304.
10
Id. § 633A.6304. This section is based on the UTC. UTC § 304 makes clear in its comments to the provision that
“substantially identical interests” include vertical representation. Therefore, it can be assumed that the same
applies to the Iowa statute as well, even though it is not explicitly stated.
11
Id. § 633A.6308. Interested persons means the persons whose consent would be required in order to achieve a
binding settlement to be approved by the court.
35
KANSAS
1
KAN. STAT. ANN. § 58a-303(6). A parent may bind and represent his or her unborn or minor child if a conservator or
guardian has not been appointed to the extent there is no conflict of interest.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 58a-303(3).
3
The guardian may represent and bind the ward within the scope of the guardian’s powers and duties. Id.
§ 58a-303(2). A “guardian” is a person appointed by the court pursuant to § 59-3001 to make decisions regarding
the support, care, education, health, and welfare of a minor or adult individual. Unlike in the UTC, the guardian’s
representation is not contingent on the failure to appoint the conservator of the ward’s estate. Therefore, while
under § 58a-303(1), the conservator may represent and bind the estate of the ward, he or she cannot represent
the ward under the statute. Id. § 58a-303(1).
4
The
holder of a general testamentary power of appointment can represent all the potential appointees the extent
there is no conflict of interest. The persons subject to the power of representation under this provision are
“permissible appointees, takers in default, or otherwise.” Id. § 58a-302.
5
Id. § 58a-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Interested persons may enter into binding nonjudicial settlement agreements only with respect to the
enumerated matters listed in id. § 58a-111(d).
7
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 58a-111(a).
MAINE
1
ME. REV. STAT. ANN. tit. 18B § 303(6). A parent may bind and represent his or her unborn or minor child if a
conservator or guardian has not been appointed to the extent there is no conflict of interest.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
tit. 18B § 303(3).
3
The guardian may represent and bind the ward if the conservator of the ward’s estate has not been appointed.
Id. tit. 18B § 303. "Guardian" is defined in § 103 as a person who has authority granted by a court to make
decisions regarding the support, care, education, health and welfare of a minor or adult individual. The same
provision defines “conservator” as a person appointed by the court to administer an estate of a minor or adult
individual.
4
The
holder of a general testamentary power of appointment can represent all those subject to this power to the
extent there is no conflict of interest. The persons subject to the power of representation under this provision
include “permissible appointees, takers in default, or otherwise.” Id. tit. 18B § 302.
5
Id. tit. 18B § 304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. tit. 18B § 111.
MASSACHUSETTS
1
Legislation enacting the UTC is pending and is expected to be signed into law by the end of 2012.
2
MASS. GEN. LAWS ch. 190B, § 1-403(2)(ii). To the extent there is no conflict of interest and no conservator or
guardian has been appointed, a parent may represent a minor child.
3
Id. ch. 190B, § 1-403(2)(ii). To the extent there is no conflict of interest, orders binding a guardian bind the
protected person or ward if no conservator has been appointed.
4
Id. ch. 190B, § 1-403(2)(ii). A guardian is a person who has qualified as a guardian of a minor or incapacitated
person pursuant to testamentary or court appointment, but excludes one who is a guardian ad litem. Id. at 1-201.
5
Id. ch. 190B, § 1-403(2)(i). Orders binding the holder of a presently exercisable general power of appointment, or
a presently exercisable power to appoint among a class of appointees which is broader than the class of those
36
persons who would take in default of the exercise of such power, bind other persons to the extent their interests,
as objects, takers in default, or otherwise, are subject to the power.
6
Id. ch. 190B, § 1-403(2)(iii). A unborn or unascertained person who is not otherwise represented is bound by an
order binding another to the extent the person’s interest is adequately represented by another party having a
substantially identical interest in the proceeding.
MICHIGAN
1
2009 Mich. Pub. Acts 46 § 7303(f). A parent may bind and represent his or her unborn or minor child if a
conservator, plenary guardian, or partial guardian has not been appointed.
2
An agent under a durable power of attorney may represent and bind the principal if a conservator, plenary
guardian, or partial guardian has not been appointed. Id. 46 § 7303(b).
3
A guardian may represent and bind the ward if a conservator or guardian of the ward’s estate has not been
appointed and no agent has the authority to act. Id. 46 § 7303(c). “Guardian” is defined in § 1104 as the person
qualified by the court as a guardian of a minor or legally incapacitated individual, and “conservator” is defined in
the same provision as a person appointed by the court to manage a protected individual’s estate.
4
Id. 46 § 7302. The holder of a presently exercisable or testamentary general power of appointment may bind and
represent those whose interests are subject to his or her power for purposes including granting consent or
approval to modification or termination of a trust, or deviation from its terms, including consent or approval to a
nonjudicial settlement agreement. Those subject to this power include: permissible appointees, takers in default or
otherwise. Unlike the UTC, representation is not limited by conflict of interest. The holder of a power of
revocation or amendment or special power of appointment may also bind and represent permissible appointees,
takers in default or others subject to the power with respect to matters excluding those listed above.
5
Id. 46 § 7304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Adding to the list of matters that can be solved by a nonjudicial agreement, Michigan adds “direction to withhold
from a trustee any power.” Michigan also excludes termination or modification of a trust from matters than can
be resolved by nonjudicial settlement agreements. Id. 46 § 7111.
7
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 7111(5).
MINNESOTA
1
MINN. STAT. § 501B.155 subd. 3(c)(3). To the extent there is no conflict of interest, orders imposed upon and
agreements entered into by an agent having authority to represent and act on behalf of the principal.
2
Id. § 501B.155 subd. 3(c)(2). To the extent there is no conflict of interest, orders and agreements binding a
guardian bind the ward if no conservator of the estate has been appointed.
3
A guardian is defined as a person who has qualified as a guardian of a minor or incapacitated person pursuant to
appointment by a parent or spouse, or by the court, and includes a limited, emergency, or temporary substitute
guardian, but not a guardian ad litem. Id. § 501B.155 subd. 4(1) (referencing § 501B.18, which adopts the
definition of guardian at § 524.5-102 subd. 5).
4
Id. § 501B.155 subd. 3(b). To the extent there is no conflict of interest, orders and agreements binding the holder
of a presently exercisable general power of appointment bind all persons to the extent that their interests, as
objects, takers in default, or otherwise are subject to the power.
5
Id. § 501B.155 subd. 3(d). An unborn or unascertained person, a person whose identity or location is unknown
and not reasonably ascertainable, a minor, or any other person under a legal disability who is not otherwise
represented is bound by an order or nonjudicial settlement agreement to the extent that the person’s interest is
represented by another party having a substantially identical interest, but only to the extent there is no conflict of
interest.
6
Id. § 501B.154(c)(5). The termination of a non-charitable trust and distribution of trust property, if the fair
market value of the trust is less than $50,000 and continuance will defeat or substantially impair the
accomplishment of its purposes, can be accomplished by nonjudicial settlement agreement. The presence of a
spendthrift provision does not conclusively make clause 5 inapplicable.
37
MISSOURI
1
A parent may represent and bind his or her minor or unborn child, provided there is no conflict of interest and no
conservator, conservator ad litem or guardian for the child has been appointed. M
O. REV. STAT. § 456.3-303(6).
2
Id. § 456.3-303(5). An agent with the authority to act with respect to a particular question may represent and
bind the principal, provided there is no conflict of interest.
3
Id. § 456.3-303(3). A guardian may represent and bind the ward with respect to a certain question or dispute,
provided there is no conflict of interest and a conservator or a conservator ad litem is not authorized to do so. A
“guardian” is someone appointed by the court to have care and custody of a minor or incapacitated person, a
“conservator” is someone appointed by the court to have care and custody of the estate of a minor or disabled
person, and a “conservator ad litem” is a person appointed by the court under § 475.097, who for a limited time is
entitled to the care and custody of the property of the protectee who is a minor, disabled or incapacitated person.
Id. § 456.3-303(3).
4
In § 456.3-302, entitled “Representation by Holder of General Testamentary Power of Appointment,” a
holder of
a testamentary power of appointment can represent all those subject to this power including: permissible
appointees, takers in default, or otherwise. Id. § 456.3-302. In this section, “testamentary power of appointment”
is defined as testamentary power of appointment exercisable without the consent of the creator of the power or
person holding an adverse interest in favor of either: 1) a class of appointees that includes the holder, the holder’s
estate, the holder’s creditors, or the creditors of the holder’s estate; or 2) all persons other than the holder, the
holder’s estate, the holder’s creditors, or the creditors of the holder’s estate.
5
Id. § 456.3-304.1. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well. Also, § 456.3-304.2 adds that a beneficiary who is not qualified may be represented and
bound by a qualified beneficiary having a substantially identical interest to the extent there is no conflict of
interest.
6
There are limitations on use of a nonjudicial settlement agreement to terminate or modify a trust. For example,
as to noncharitable trusts that became irrevocable after January 1, 2005, a nonjudicial settlement agreement may
not be used to terminate or modify a trust “for the reasons that a court could terminate or modify a trust as set
forth in § 456.4B-411” that authorizes the court, if all adult beneficiaries with capacity consent and the court finds
that the interests of all nonconsenting beneficiaries will be adequately protected, to modify trust terms “to reduce
or eliminate the interests of some beneficiaries and increase those of others, change the times or amounts of
payments and distributions to beneficiaries, or provide for termination of the trust at a time earlier or later than
that specified by its terms”; whereas for trusts that became irrevocable prior to January 1, 2005 the court may vary
the trust terms “to reduce or eliminate the interests of some beneficiaries and increase those of others, to change
the times or amounts of payments and distributions to beneficiaries, or to provide for termination of the trust at a
time earlier or later than that specified” if all of the adult beneficiaries who are not disabled consent and the court
finds “that such variation will benefit the disabled, minor, unborn and unascertained beneficiaries, vary the terms
of a private trust so as to reduce or eliminate the interests of some beneficiaries and increase those of others, to
change the times or amounts of payments and distributions to beneficiaries, or to provide for termination of the
trust at a time earlier or later than that specified by the terms.” Therefore it appears this latter basis for trust
modification and termination applies also to nonjudicial settlement agreements, because such agreements are
valid to the extent they do not violate a material purpose of the trust and include terms and conditions that could
properly be approved by the court. Id. § 456.1-111.3. Further, except for certain trusts established by court order,
a noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all beneficiaries,
without court approval, even if the modification or termination is inconsistent with a material purpose of the trust.
Id. § 456.4A -411.1.
7
“Interested Persons” means the persons whose consent would be required in order to achieve a binding
settlement were the settlement to be approved by the court. Id. § 456.1-111.1.
MONTANA
1
MONT. CODE ANN. § 72-1-303(2)(b). If there is no conflict of interest and no conservator of guardian has been
appointed, a parent may represent his minor child.
2
Id. § 72-1-303(2)(b). Orders binding a guardian bind the ward if no conservator of his estate has been appointed.
38
3
A guardian is defined as a person who has qualified as a guardian of a minor or incapacitated person pursuant to
testamentary or court appointment, but excludes one who is merely a guardian ad litem. Id.
§ 72-1-103(21).
4
Id. § 72-1-303(2)(a). Orders binding the holder of a presently exercisable general power of appointment bind
other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
5
Id. § 72-1-303(2)(c). An unborn or unascertained person who is not otherwise represented in bound by an order
to the extent his interest is adequately represented by another party having a substantially identical interest in the
proceeding.
NEBRASKA
1
NEB. REV. STAT. § 30-3824(6). A parent may bind and represent his or her unborn or minor child if a conservator or
guardian has not been appointed to the extent there is no conflict of interest.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 30-3824(3).
3
Id. § 30-3824(2). To the extent there is no conflict of interest, a guardian may represent and bind the ward if a
conservator has not been appointed. “Guardian” is defined in § 30-3803 as a person who has qualified as the
guardian of a minor or incapacitated person and a “conservator” is defined in the same provision as a person
appointed by the court to administer the estate of a minor or adult individual.
4
The
holder of a general testamentary power of appointment can represent permissible appointees, takers in
default, or otherwise to the extent there is no conflict of interest. Id. § 30-3823.
5
Id. § 30-3825. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Unlike the UTC, a spendthrift provision is deemed to constitute a material purpose of the trust and therefore
cannot be resolved in Nebraska by a nonjudicial settlement agreement. Id. § 30-3811(c).
7
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 30-3811(a).
NEVADA
1
This statute, §164.038, relates to virtual representation in trust matters . As to virtual representation in probate
matters, see N
EV. REV. STAT. § 155.140.
2
Id. §164.038(4). If a trust has a minor or incapacitated beneficiary who may not be represented by another
person pursuant to this section, the custodial parent. . .may represent the minor. . .in any judicial proceeding or
nonjudicial matter pertaining to the trust. There must be no conflict of interest.
3
Id. §164.038(4). If a trust has a minor or incapacitated beneficiary who may not be represented by another
person pursuant to this section, the. . .guardian of the estate of the minor or incapacitated beneficiary may
represent the minor or incapacitated beneficiary in any judicial proceeding or nonjudicial matter pertaining to the
trust. There must be no conflict of interest.
4
Id. §164.038(1)-(2). Unless otherwise represented by counsel, a minor, incapacitated person, unborn or person
whose identity or location is unknown and not reasonably ascertainable may be represented by another person
who has a substantially similar interest with respect to the question or dispute. Id. There must be no material
conflict of interest. Id. Additionally, The representation of a minor or incapacitated beneficiary pursuant to
subsection 4 is binding on an unborn person or a person who cannot be ascertained if (1) the unborn or
unascertainable person has an interest substantially similar to the minor or incapacitated person, and (2) there is
no material conflict of interest between the unborn or unascertainable person and the minor or incapacitated
person. Id. §164.038(4).
5
Id. §164.038(3). A presumptive remainder beneficiary may represent and bind a beneficiary with a contingent
remainder for the same purpose, in the same circumstance, and to the same extent as an ascertainable beneficiary
may bind a minor, incapacitated person, unborn person, or person who cannot be ascertained.
6
Other matters that may be addressed by a nonjudicial settlement agreement include: (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 choice of law governing the construction of the trust instrument or administration of
the trust, or both; (5) the granting of approval or authority for a trustee to make charitable gifts from a
noncharitable trust; (6) the termination of the trust.
39
7
“Indispensible parties” refers to all interested parties as defined in NRS 132.185. Whose consent would be
required in order to achieve a binding settlement were the settlement to be approved by the court. Section
132.185 was amended by SB484 (2015). “Interested person” now includes a settlor, if living, the trustee and a
trustee remover. Note, however, that the necessary parties do not need to affirmatively consent to the settlement
agreement. The trustee may give a notice of proposed action to the beneficiaries under Section 164.725, in which
case the beneficiary will be deemed to have consented if the beneficiary fails to object.
NEW HAMPSHIRE
1
N.H. REV. STAT. ANN. § 564-B:3-303(7). A parent may represent and bind his or her minor, unborn or incapacitated
child if no guardian of the estate or guardian of the person has been appointed, and a person may represent a
grandchild or more remote direct descendant if no guardian of the estate or guardian of the person has been
appointed for the descendant.
2
Id. § 564-B:3-303(4). An agent with the authority to act with respect to a particular question may represent and
bind the principal.
3
Section 564-B:3-303(1) allows a conservator to bind the estate the conservator controls and Section 564-B:3-
303(2) allows a guardian of the estate to bind the estate the guardian controls. A “guardian of the estate,” defined
in § 564-B:1-103(6)(a), is a person appointed by the court to administer the estate of a minor or incapacitated
person. A conservator is a person appointed to manage a competent individual’s financial affairs (because that
individual requests the appointment based upon the belief that he or she is unable to manage his or her own
affairs). See § 564-B:1-103(4). A guardian of the person may represent and bind the ward if a guardian of the
estate has not been appointed. Id. § 564-B:3-303(3). A “guardian of the person,” defined in § 564-B:1-103(6)(b), is
a person appointed by the court to make decisions regarding the support, care, and education of a minor or
incapacitated person.
4
The
holder of a general testamentary power of appointment can represent all those subject to this power to the
extent there is no conflict of interest. The persons subject to the power of representation under this provision
include “permissible appointees, takers in default, or otherwise.” Id. § 564-B:3-302.
5
Id. § 564-B:3-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Id. § 564-B:1-111. The matters listed in this section may be resolved “without limitation.”
7
The New Hampshire statutes adds matters involving termination or modification of a trust to the nonexclusive list
of matters that may be resolved by a nonjudicial settlement agreement. Id. § 564-B:1-111(d)(7).
8
As originally enacted in 2004, the New Hampshire UTC included UTC § 411(c), under which a spendthrift provision
presumptively was not a material purpose of the trust. In 2005, the statutory presumption was repealed. Laws of
2005, ch. 270, § 10.
9
The New Hampshire definition of “interested persons” differs from the UTC definition in that it encompasses
persons, other than the settlor, whose consent would be required to achieve a binding settlement in court. Id.
§ 564-B:1-111(a).
NEW JERSEY
1
N.J. Stat. § 3B:31-15(f).
2
Id. § 3B:31-15(c). An agent with authority to act with respect to the particular question or dispute may represent
and bind the principal.
3
Id. § 3B:31-15(a), (b). A guardian of the property may represent and bind the estate that the guardian controls
and a guardian of the person may represent and bind the ward if no guardian of the property has been appointed.
4
Id. § 3B:31-14. To the extent there is no conflict of interest with respect to the particular question or dispute, a
holder of a general testamentary power of appointment may represent permissible appointees and takers in
default. A holder of a general power of appointment in favor of the holder or the holder’s estate shall be deemed
to not have a conflict.
5
Id. § 3B:31-16.
6
Id. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this provision that
“substantially identical interests” include vertical representation, it can be assumed that the same applies here as
well even though it is not explicit in the statute.
40
7
Id. § 3B:31-11(b).
8
A nonjudicial settlement agreement may not be used to produce a result contrary to Title 3B, including
terminating or modifying a trust in an impermissible manner.
9
Id. § 3B:31-11(c).
10
Id. § 3B:31-27(c).
11
“Interested persons” means persons whose consent would be required in order to achieve a binding settlement
were the settlement to be approved by the court. Id. § 3B:31-11(a).
NEW MEXICO
1
N.M. STAT. ANN. § 46A-3-303(F). A parent may bind and represent his or her unborn or minor child if a
conservator or guardian has not been appointed to the extent there is no conflict of interest.
2
An agent with the authority to act with respect to a particular question or dispute may represent and bind the
principal. Id. § 46A-3-303(C).
3
A guardian may represent and bind the protected person if a conservator has not been appointed. Id. § 46A-3-
303(B). “Guardian” is defined as a person appointed by the court to make decisions about the support, care,
education, health and welfare of a minor or incapacitated person; a “conservator” is defined as a person appointed
to administer the estate of a minor or adult individual. Id. § 46A-1-103.
4
The
holder of a general testamentary power of appointment can represent all those subject to this power to the
extent there is no conflict of interest. The persons subject to the power of representation under this provision
include “permissible appointees, takers in default, or otherwise.” Id. § 46A-3-302.
5
Id. § 46A-3-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. Id. § 46A-1-111(A).
NEW YORK
1
N.Y. SURR. CT. PROC. ACT § 315. The holder of any power of appointment may represent all potential appointees
and the holder of a general power of appointment may represent all potential appointees and takers in default.
2
Id. § 315(a)(iii). Unborn or unascertained persons do not need to be made parties if there is someone with their
same interests.
3
If the instrument provides, a party to the proceeding with the same interest as a person under disability can
represent that person. Id. § 315(5).
4
It is not necessary to serve an unborn or unascertained individual, as long as there is someone to represent them
who has the “same” interest. If there is no one with the same interest as the unborn or unascertained individuals,
the statute provides for the appointment of a guardian ad litem. Id. § 315(2)(a)(iii).
5
Living members of a class may represent future members of the class when class membership is based on a
future contingency. Id. § 315(2)(a)(i). Also, under § 315(3), successive contingent interests may be represented by
the first contingent interest holder.
6
While the New York legislation does not refer to “interested persons” like the UTC, the persons identified as
needing to participate in order to validate a nonjudicial settlement agreement are substantively similar. Id.
§ 315(8).
7
Id. § 315(8). This section discusses the settlement of accounts of fiduciaries. It is unknown whether it applies to
some or all trusts.
NORTH CAROLINA
1
N.C. GEN. STAT. § 36C-3-303(7). A person may represent his or her unborn issue. Under § 36C-3-303(6), a parent
may represent and bind the parent’s minor child if a general guardian or guardian of the child’s estate has not
been appointed. If a disagreement arises between parents seeking to represent the same minor child, then the
statute provides a method to determine who will represent the child. First, the parent who is the beneficiary of
the trust that is the subject of the representation is entitled to represent the minor child. If no parent is a
beneficiary then the parent who is a lineal descendant of the settlor is entitled to represent the child. If no parent
is a lineal descendant then a guardian ad litem will be appointed to represent the child.
41
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 36C-3-303(3).
3
A guardian of the estate may represent and bind the estate, but the section allowing a guardian to represent and
bind the ward was repealed. 2007 N.C. Sess. Laws 106, s. 11.
4
The holder(s) of either the power of revocation or a presently exercisable general power of appointment
represent other persons to the extent that their interests as either permissible appointees, takers in default or
otherwise are subject to the power. Also, to the extent that there is no conflict of interest, the holder of a general
testamentary power of appointment may represent and bind those persons whose interests as either permissible
appointees, takers in default or otherwise are subject to the power. N.C.
GEN. STAT. § 36C-3-302.
5
Id. § 36C-3-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Any matter not expressly listed in the statute is excluded from those matters that may be settled by a nonjudicial
settlement agreement.
7
The persons whose consent would be required in order to achieve a binding settlement were the settlement to
be approved by the court. N.C.
GEN. STAT. 36C-1-111(a).
NORTH DAKOTA
1
N.D. CENT. CODE § 59-11-03(6). A parent may represent and bind the parent’s minor child if a conservator or
guardian for the child has not been appointed. If a disagreement arises between parents seeking to represent the
same minor child, then the statute provides a method to determine who will represent the child. First, the parent
who is the beneficiary of the trust that is the subject of the representation is entitled to represent the minor child.
If both parents are beneficiaries or neither parent is a beneficiary, then the parent who is a lineal descendant of
the settlor is entitled to represent the child. If no parent is a lineal descendant, then a guardian ad litem will be
appointed to represent the child. A parent may bind and represent his or her unborn child. Id. § 59-11-03(7).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 59-11-03(3).
3
Id. § 59-11-03(2). A guardian may represent and bind the ward if a conservator has not been appointed, to the
extent of the power conferred on the guardian by a court order. “Guardian” is defined as a person appointed by
the court to be the guardian of a minor or incapacitated person pursuant to testamentary or court appointment,
and a “conservator” is a person appointed by the court to administer the estate of a protected person. Id.
§ 30.1-01-06.
4
The holder of a presently exercisable general power of appointment, which includes a testamentary general
power of appointment having no conditions precedent to its exercise beyond the death of the holder, the validity
of the holder’s last will and testament, and the inclusion of a provision in the will granting the power, may
represent and bind persons whose interests are subject to the power as permissible appointees, takers in default,
or otherwise. Id. § 59-11-02.
5
Id. § 59-11-04 is based on the UTC. Because UTC § 304 makes it clear in its comments to this provision that
“substantially identical interests” include vertical representation, it can be assumed that the same applies here as
well even though it is not explicit in the statute.
6
Two matters are added to the list of those that may be solved by a nonjudicial settlement agreement: 1) the
extent or waiver of bond of a trustee; and 2) the criteria for distribution to a beneficiary where the trustee is given
discretion.
7
A spendthrift provision is presumed to constitute a material purpose of the trust and therefore a dispute
involving this provision cannot be resolved by a nonjudicial settlement agreement. N.D.
CENT. CODE § 59-09-11(3)-
(4).
8
“Interested persons” refers both to the trustee and the persons whose consent would be required in order to
achieve a binding settlement were the settlement to be approved by the court. Id. § 59-09-11(1).
OHIO
1
OHIO REV. CODE ANN. § 5803.03(F). A parent may bind and represent his or her unborn or minor child if a guardian
of the estate or guardian of the person has not been appointed to the extent there is no conflict of interest. If a
minor or unborn child is not represented by a parent, then he or she may be represented pursuant to § 5803.04.
42
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 5803.03(C).
3
Id. § 5803.03(A)-(B). A guardian of the estate may represent his ward, and if there is no guardian of the estate, a
guardian of the person may represent the ward.
4
The
holder of a general testamentary power of appointment can represent all those subject to this power to the
extent there is no conflict of interest. The persons subject to the power of representation include “permissible
appointees, takers in default, or otherwise.” Id. § 5803.02. The provision also distinguishes between those with a
general testamentary power and a presently exercisable general power of appointment, noting that the holders of
a presently exercisable general power are governed by a separate provision.
5
Id. § 5803.04. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Id. § 5801.10. This section is somewhat similar to the UTC section concerning nonjudicial settlement agreements
but uses different language and is much more complex. Parties may enter into written agreements with respect to
any matter concerning the construction, administration or distribution of the trust, the investment of income or
principal held by the trustee, or other matters. Therefore, while many of the categories in this section are not
explicitly named as they are in the UTC, they may still be covered by this provision. However, the agreement
cannot effect a termination of a trust before the date specified in the trust, or change the interests of the
beneficiaries in the trust except as specified in subsection (C).
Under § 5801.10 (C), listed matters that may be settled under this provision include but are not limited to:
1) determining classes of creditors, beneficiaries, heirs, next of kin, or other persons; 2) resolving disputes arising
out of the administration or distribution under the terms of the trust, including disputes over the construction of
the language of the trust instrument or other writings that affect the terms; 3) granting to the trustee necessary or
desirable powers not granted in the terms of the trust or otherwise provided by law, to the extent that those
powers either are not inconsistent with the provisions or purposes of the trust, or if inconsistent, then are
necessary for the administration of the trust; 4) modifying the terms of the trust as long as it is not inconsistent
with a dominant purpose of the trust; 5) modifying the terms of the trust to qualify it as a gift for the charitable
estate or gift tax deduction, including the addition of IRS mandate governing instrument requirements for a
charitable remainder trust; 6) modifying the terms of the trust required to qualify the gift for the estate tax marital
deduction to noncitizen spouses, including the addition of IRS mandated governing instrument requirements for a
qualified domestic trust where all interested parties have submitted written agreements to the proposed changes
or written a disclaimer of interest; and 7) resolving any other matter that arises under Chapters 5801 – 5811.
7
In a departure from the UTC, the Ohio Code
delineates exactly which parties need to participate in a private
settlement agreement. The following parties or their representatives must be present: 1) the settlor if living and if
no adverse income or transfer tax results would arise from his or her participation; 2) all beneficiaries; 3) all
currently serving trustees; and 4) creditors if their interests are affected by the agreement. The exception to the
rule that all parties listed above must be present is that only the settlor and any trustee are required to be parties
to an amendment of a revocable trust. Id. § 5801.10(B).
8
The nonjudicial settlement provision does not apply to certain charitable trusts specified in Id. § 5801.10(M).
OREGON
1
A parent may represent and bind his or her minor or unborn child if a conservator for the child has not been
appointed. O
R. REV. STAT. § 130.110(5).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal.
Id. § 130.110(2).
3
A conservator may represent and bind the estate, but the section allowing a guardian to represent and bind the
ward is omitted from the Oregon statute. Id. § 130.110(1).
4
The
holder of a testamentary power of appointment can represent all potential appointees to the extent there is
no conflict of interest. The persons subject to the power of representation under this provision are permissible
appointees, takers in default, or persons subject for any other reason. While Oregon deletes the word “general” in
the section, no other language is changed and the phrase presumably has the same meaning as the UTC’s “general
testamentary power of appointment.” Id. § 130.105.
43
5
Id. § 130.115. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Two matters are added to the nonexclusive list of matters that may be solved by a nonjudicial settlement
agreement in Oregon: 1) determining classes of creditors, beneficiaries, heirs, next of kin or other persons, and 2)
resolving disputes arising out of the administration or distribution of the trust.
7
“Interested persons” is defined differently from the UTC as any settlor of a trust who is living, beneficiaries of the
trust who have an interest in the subject of the agreement, any acting trustee, and the Attorney General if the
trust is a charitable trust subject to the powers of the state or the Attorney General under §§ 128.610 - 128.750.
PENNSYLVANIA
1
An individual represents his or her minor and unborn descendants unless a guardian has been appointed to
represent them. 20
PA. CONS. STAT. § 7723(9).
2
An agent under general power of attorney represents the agent’s principal and an agent under a limited power of
attorney represents the principal within the scope of the agent’s authority. Id. § 7723(2).
3
A plenary guardian may represent persons whose estate the guardian supervises and a limited guardian may
represent persons whose estate he or she supervises within the scope of his or her court granted authority. Id.
§ 7723(1). “Guardian” is defined in § 7703 as a person other than a guardian ad litem appointed by a court to
make decisions regarding the property of an individual. Although not specified, that individual can be a minor or
an incapacitated adult.
4
Without regard to conflict of interest concerns, holder(s) of a presently exercisable or testamentary power of
appointment may represent all potential appointees and all takers in default of exercise of the power of
appointment if they can appoint to: 1) the holder’s estate, the holder’s creditors, or the creditors of the holder’s
estate; or 2) anyone other than the holder’s estate, the holder’s creditors and the creditors of the holder’s estate.
Id. § 7723(7). A sole
holder or co-holder of a presently exercisable or testamentary power of appointment that
does not fit into one of the categories above may, absent a conflict with respect to the matter at issue, represent
all potential appointees and all takers in default of exercise of the power who are also potential appointees. Id.
§ 7723(8).
5
Id. § 7723(6).
6
Id. § 7723.
7
Id. § 7724. This section provides “if . . . the court determines that the representation . . . is or might be
inadequate, the court may appoint a guardian ad litem or trustee ad litem. . . .”
8
Id. § 7723(4)-(5). This section codifies the vertical representation concept implicit in UTC § 304.
9
Pennsylvania adds to the nonexclusive list of matters that may be resolved by a nonjudicial agreement as long as
it does not violate a material purpose of the trust. The additions are: 1) the grant to a trustee of any necessary or
desirable power; 2) the exercise or nonexercise of any power by a trustee; 3) questions relating to the property or
an interest in property held as part of a trust; 4) an action or proposed action by or against a trust or trustee; 5) the
modification or termination of a trust; 6) an investment decision, policy, plan or program of a trustee; and 7) any
other matter concerning the administration of a trust. Id. § 7710.1(d).
10
Note that the virtual representation statute does not address this issue, but § 7740.1 (Modification or
termination of non-charitable irrevocable trust by consent) provides that a spendthrift provision is in fact
presumed to be a material purpose of the trust. Section 7740.1 deals with both nonjudicial and judicial
modifications and terminations.
11
Rather than stating that “interested persons” may enter into a binding nonjudicial settlement agreement, the
Pennsylvania Code states that all beneficiaries and trustees of a trust may do so. Id. § 7710.1(b).
RHODE ISLAND
1
R.I. GEN. LAWS § 33-22-17. In any action involving wills, estates, trusts, or fiduciaries in the probate court, a
minor, an incapacitated person or an unborn or unascertained person whose identity and location is unknown and
not reasonably ascertainable, unless otherwise represented, may be represented by and bound by another having
a substantially identical interest with respect to the particular question or dispute, but only to the extent that: (1)
the person's interest is adequately represented, and (2) there is no conflict of interest between the representative
and the person represented. R.I.
GEN. LAWS § 18-4-30 Representation by person having substantially identical
44
interest. In any action involving wills, estates, trusts or fiduciaries in the Probate Court or the Superior Court, a
minor, an incapacitated person or an unborn or unascertained person whose identity and location is unknown and
not reasonably ascertainable, unless otherwise represented, may be represented by and bound by another having
a substantially identical interest with respect to the particular question or dispute, but only to the extent that: (1)
The person’s interest is adequately represented; and (2) there is no conflict of interest between the representative
and the person represented. See also R.I.
GEN. LAWS § 33-22-17 Representation of unborn, unascertained, and
incompetent persons.
SOUTH CAROLINA
1
S.C. CODE ANN. § 62-7-303(a)(6). A parent may represent and bind his or her minor or unborn child if a
conservator or guardian has not been appointed. The provision which grants this power orders the beneficiary
representatives in order of the priority each representative has relative to the others. The order is as follows: 1)
conservator 2) guardian 3) agent 4) trustee 5) personal representative of a decedent’s estate and 6) parent. § 62-
7-303(b).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 62-7-303(a)(2).
3
Id. § 62-7-303(2). A guardian may represent and bind the ward if a conservator of the ward’s estate has not been
appointed. A “guardian” is defined in § 62-7-103 as a person appointed to make decisions regarding the support,
care, education, health, and welfare of a minor or adult individual; a “conservator” is defined in the same provision
as a court appointee to administer the estate of the protected person.
4
The holder of a presently exercisable general power of appointment, which includes a testamentary general
power of appointment may represent and bind persons whose interests are subject to the power. Those persons
are: permissible appointees, takers in default and those otherwise subject to the power. Id. § 62-7-302.
5
Providing that the person represented is adequately represented by the beneficiary representative, a
representative may represent a minor, incapacitated, unborn individual or individual whose identity or location is
unknown and not reasonably ascertainable. Id. § 62-7-304.
6
Id. § 62-7-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
7
All matters not listed are excluded from being settled by nonjudicial settlement agreements. Id. § 62-7-111.
8
“Interested persons” is defined as anyone whose consent would be required to achieve a binding settlement
were the settlement to be approved by the court. Id. § 62-7-111(a).
SOUTH DAKOTA
1
S.D. CODIFIED LAWS § 55-3-35. This section relates to service of persons under disabilities. If the person under a
disability is a minor, and no conservator or guardian has been appointed, then service can be upon the natural
parents. If there are no natural parents alive, then service may be upon the adoptive parents.
2
Id. § 55-3-35. This section relates to service of persons under disabilities. It states that if the person under a
disability is an adult and no conservator has been appointed, notice can be served on an agent under durable
power of attorney.
3
Id. § 55-3-35. This section relates to service of persons under disabilities. If the person under a disability is a
minor and no conservator has been appointed, notice shall be served on a guardian of the minor.
4
Id. § 55-3-35. This section relates to service of persons under disabilities. If a person under a disability is an adult
and no conservator has been appointed, notice can be served on a guardian of the adult person.
5
Id. § 55-3-35. This section relates to service of persons under disabilities. For both minors and adults under
disabilities, it allows for service on a conservator, and if no conservator has been appointed, then on a guardian of
the individual.
6
Id. § 55-3-32. If a party to the proceeding has a power of appointment, it is not necessary to serve the potential
appointees and, if it is a general power of appointment, it is not necessary to serve the takers in default of the
exercise thereof.
7
Id. § 55-3-32(3). It is not necessary to serve an unborn or unascertained individual, as long as there is someone
to represent them who has the “same interests.” If there is no one with the same interests as the unborn or
unascertained individual, the statutes provides for the appointment of a guardian ad litem.
45
8
Id. § 55-3-45 allows for an accounting to be finalized despite the absence of approval by a beneficiary in certain
circumstances. The trust must not be subject to court supervision and there must be no objection to the
accounting within 180 days after a copy of the trustee’s accounting was mailed, postage prepaid, to the last known
address of the beneficiary.
9
Trust may be modified or terminated upon the consent of all beneficiaries if continuance on existing terms is not
necessary to carry out a material purpose. A trust may be modified or terminated without regard to material
purpose if the settlor consents. Id. § 55-3-24.
TENNESSEE
1
TENN. CODE. ANN. § 35-15-303(6). A person may bind and represent his or her unborn or minor descendant if a
guardian for the descendant has not been appointed.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 35-15-303(3).
3
A guardian may represent and bind the ward if a conservator for the ward’s estate has not been appointed. Id.
§ 35-15-303(2). “Guardian” is defined in § 34-1-101 as a person appointed by the court to provide partial or full
supervision, protection and assistance to the person or property of a minor; “conservator” is defined in the same
provision as a person appointed by the court to provide supervision, protection and assistance to the person or
property of a disabled person. Because “conservator” only applies to disabled persons and “guardian” only applies
to minors, this provision is unclear as to whether in this subchapter, “guardian” also applies to an incapacitated
adult.
4
Id. § 35-15-302. The holder of a general testamentary power of appointment may bind and represent those
whose interests are subject to his or her power which include permissible appointees, takers in default or
otherwise.
5
Id. § 35-15-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
The Tennessee Code adds the following to the nonexclusive list of matters that may be resolved by a nonjudicial
settlement agreement: 1) the extent or waiver of bond of a trustee; 2) the governing law of the trust; and 3) the
criteria for distribution to a beneficiary where the trustee is given discretion.
7
In a departure from the UTC, Tennessee specifies that qualified beneficiaries and trustees of a trust may enter
into a binding nonjudicial settlement agreement. T
ENN. CODE. ANN. § 35-15-111(a).
TEXAS
1
TEX. PROP. CODE ANN. § 115.013(c)(3). 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. T
EX. PROP.
CODE ANN. § 114.032(c) parent can represent minor child if no conflict of interest.
2
An agent under a power of attorney has the authority to represent the principal in litigation and in settlement
agreements if they have signed the statutory form or another power of attorney that includes the necessary
language. Id. § 500.
3
Id. § 115.013(c)(2)(A). To the extent there is no conflict of interest, an order binding a guardian of the estate or a
guardian ad litem binds the ward.
4
Id. § 115.013(c)(2)(A). While the statute does not expressly state who a guardian can represent, it does use the
terms guardian ad litem and guardian of the estate. There are no definitions of guardian included in the Property
Code. Under the Probate Code, however, a guardian includes guardians of incapacitated persons. Tex. Prob. Code
Ann. § 601(11). Minors are included in the definition of incapacitated persons. Id. at § 601(14). Therefore, it is
probable that a guardian can represent both minors and an incapacitated adults.
5
Id. § 115.013(c)(1). An order binding the holder of a presently exercisable general power of appointment binds
other persons to the extent their interests, as objects, takers in default, or otherwise are subject to the power.
6
Id. § 115.013(c)(4). An unborn or unascertained person who is not otherwise represented is bound by an order
to the extent his interest is adequately represented by another party having a substantially identical interest in the
proceeding. See also Id. § 114.032(b).
46
UTAH
1
UTAH CODE ANN. § 75-7-303(6) a parent may bind and represent his or her unborn or minor child if a guardian for
the child has not been appointed.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 75-7-303(3).
3
A guardian may represent and bind the ward if a conservator for the ward’s estate has not been appointed. Id.
§ 75-7-303(2). “Guardian” is defined in § 75-1-201 as a person qualified by either testamentary, court
appointment or written instrument to be the guardian of a minor or incapacitated person, and “conservator” is
defined in the same provision as a person appointed by the court to manage the estate of a protected person.
4
Id. § 75-7-302. The holder of a general testamentary power of appointment may bind and represent those whose
interests are subject to his or her power which include permissible appointees, takers in default or otherwise. This
representation is limited to matters in which there are no conflicts of interest.
5
Id. § 75-7-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
“Interested persons” is defined in the same way as under the UTC, as the persons whose consent would be
required to achieve a binding settlement if the settlement were to be approved by a court. Id. § 75-7-110(2).
VERMONT
1
VT. STAT. ANN. tit. 14A, § 303(6). To the extent there is no conflict of interest with respect to a particular question
or dispute, a parent may represent and bind the parent’s minor or unborn child, if a guardian for the child has not
been appointed.
2
Id. tit. 14A, § 303(3). To the extent there is no conflict of interest with respect to a particular question or dispute,
an agent having authority to act with respect to the particular question or dispute may represent and bind the
principal.
3
Id. tit. 14A, § 303(2). To the extent there is no conflict of interest with respect to a particular question or dispute,
a guardian of the person may represent and bind the ward if a guardian of the ward’s estate has not been
appointed.
4
Id. tit. 14A, § 303(1),(2). A guardian of the person means a person appointed by the
probate court to make decisions regarding the support, care, education, health,
and welfare of a minor or adult individual. Id. at § 103.
5
Id. tit. 14A, § 302. To the extent there is no conflict of interest, the holder of a general testamentary power of
appointment may represent and bind persons whose interests, as permissible appointees, takers in default, or
otherwise, are subject to the power.
6
Id. tit. 14A, § 304. Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose
identity or location is unknown and not reasonably ascertainable, may be represented and bound by another
having a substantially identical interest with respect to the particular question or dispute, but only to the extent
there is no conflict of interest with respect to the particular question.
7
Id. tit. 14A, § 111. This section is based on the UTC. UTC § 304 makes clear in its comments to the provision that
“substantially identical interests” include vertical representation. Therefore, it can be assumed that the same
applies to the Vermont statute as well, even though it is not explicitly stated.
8
Id. tit. 14A, § 111(a). Interested persons means persons whose consent would be required in order to achieve a
binding settlement were the settlement to be approved by the probate court.
VIRGINIA
1
VA. CODE ANN. § 64.2-716(6). A parent may bind and represent his or her unborn or minor child if a guardian for
the child or guardian for the child’s estate has not been appointed. Also, under Va. Code § 64.2-716(7), if a minor
or unborn child has no representative under subparts (1)-(6) of § 64.2-716, then a grandparent or other remote
ancestor may represent and bind that minor or unborn child. Id. § 64.2-716(7).
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 64.2-716(3).
3
A guardian may represent and bind the ward if a conservator or guardian of the ward’s estate has not been
appointed. Id. § 64.2-716(2). “Guardian” is defined in § 64.2-701 as the person appointed by the court to make
47
decisions regarding the support, care, education, health and welfare of a minor or adult individual, and
“conservator” is defined in the same provision as a person appointed to manage the estate of an adult individual,
and “guardian of the estate” is defined as a court appointed person to administer the estate of a minor. Id. § 64.2-
701.
4
Id. § 64.2-715. The holder of a general testamentary power of appointment may bind and represent those whose
interests are subject to his or her power to the extent there is no conflict of interest. Id. Those subject include:
permissible appointees, takers in default or otherwise. Id.
5
Id. § 64.2-717. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
“Interested persons” is defined in the same way as under the UTC, as the persons whose consent would be
required to achieve a binding settlement if the settlement was approved by a court. Id. §64.2-709.
WASHINGTON
1
As amended by S.B. No. 5344, July 28, 2013.
2
A parent may represent and bind the parent’s minor or unborn child or children if a guardian for the child or
children has not been appointed. W
ASH. REV. CODE § 11.96A.120(4)(f).
3
An agent having authority to act with respect to the particular question or dispute may represent and bind the
principal. W
ASH. REV. CODE § 11.96A.120(4)(c).
4
A guardian may represent and bind the estate that the guardian controls. Id. § 11.96A.120(4)(a). A guardian of
the person may represent and bind the incapacitated person if a guardian of the incapacitated person’s estate has
not been appointed. Id. § 11.96A.120(4)(b). A guardian is appointed for “the persons and/or estates of
incapacitated persons.” Id. § 11.88.010(1).
5 “
To the extent there is no conflict of interest between the holder of the power of appointment and the person
represented with respect to the particular question or dispute, the holder of a lifetime or testamentary power of
appointment may virtually represent and bind persons who are permissible appointees or takers in default (but
only to the extent that they are permissible appointees in the case of a limited power of appointment) under the
power….” Id. § 11.96A.120(9).
6
“Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or
location in unknown and not reasonably ascertainable, may be represented by and bound by another having a
substantially identical interest with respect to the particular question or dispute, but only to the extent that there
is no conflict of interest between the representative and the person represented with regard to the particular
question or dispute.” Id. § 11.96A.120(5).
7
Id. § 11.96A.120(5). Subsection (5) is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well.
8
Id. § 11.96A.220. This statute provides that § 11.96A.210-250 shall be applicable to the resolution of any matter,
with certain exceptions. If all parties agree to a resolution of any of applicable matter, they must reduce it to a
signed written agreement, which will then be binding and conclusive on all persons interested in the estate or
trust. “Matter” is defined in § 11.96A.030 (as amended in 2009), which provides the matters that may be resolved
by nonjudicial settlement.
9
Id. § 11.96A.030 (amended 2009). The other matters that may be decided by nonjudicial agreement are (1) the
determination of any class of creditors, devisees, legatees, heirs, next of kin, or other persons interested in an
estate, trust, nonprobate asset, or with respect to any other asset or property interest passing at death, (2) certain
issues relating to nonprobate trusts, and (3) the amendment, reformation, or conformation of a will or a trust
instrument to comply with statutes and regulations of the United States internal revenue service.
10
Id. § 11.96A.030 (amended 2009). “Persons interested in the estate or trust” means the trustor, if living, all
persons beneficially interested in the estate or trust, persons holding powers over the trust or estate assets, the
attorney general in the case of any charitable trust where the attorney general would be a necessary party to
judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust.
48
WEST VIRGINIA
1
Under W. VA. CODE ANN. §44D-3-303(5), a parent may represent and bind the parent’s minor or unborn child if a
conservator or guardian for the child has not been appointed. Additionally, West Virginia goes beyond the UTC
and adds §44D-3-303(6), which allows a “grandparent or more remote ancestor” to represent and bind a minor or
unborn person if the person is not already represented under the Section.
2
An agent having authority to act with respect to the particular question or dispute may represent and bind the
principal. Id. §44D-3-303(2).
3
A conservator or guardian of the protected person may represent and bind the estate that the fiduciary controls.
Id. §44D-3-303(1). “Conservator” means a person appointed by the court to administer the estate and financial
affairs of a protected person. Id. §44D-1-103(e). “Guardian” means a person appointed by the court who is
responsible for the personal affairs of a protected person or a parent to make decisions regarding the support,
care, education, health and welfare of a minor. Id. §44D-1-103(j).
4
The holder of a general testamentary power of appointment may represent and bind permissible appointees,
takers in default, or those otherwise subject to the power to the extent that there is no conflict of interest
between the holder of the power and the persons represented. Id. §44D-3-302.
5
Id. §44D-3-304. Because UTC § 304 makes it clear in its comments to this provision that “substantially identical
interests” include vertical representation, it can be assumed that the same applies here as well, even though it is
not explicit in the statute.
6
The West Virginia Statute expressly includes seven additional matters that may be resolved by a non judicial
settlement agreement. These are: An investment decision, policy, plan or program of the trustee; The grant to a
trustee of any necessary or desirable power; The exercise or nonexercise of any power by a trustee; An action or
proposed action by or against a trust or trustee; The modification or termination of a trust; and Any other matter
concerning the administration of a trust. W.
VA. CODE ANN. § 44D-1-111(b)(7)-(13).
7
Although the Statute does not expressly address whether the trustee may be removed by agreement of the
beneficiaries, § 44D-1-111(b)(11) states that an action “against a trustee” may be resolved by a nonjudicial
settlement agreement. Id. §44D-1-111(b)(11) This likely contemplates an action for removal of a trustee.
8
As in the UTC,
this Statute defines “interested persons” as persons whose consent would be required to achieve a
binding settlement were the settlement to be approved by the court. Id. §44D-1-111(a).
WISCONSIN
1
WIS. STAT. § 701.15(1). The statute governing probate court contains no language regarding power of
appointment. The statute governing trust proceedings in circuit court, however, states that the holder of a general
power of appointment may represent any or all persons whose interests are subject to such power.
2
Id. §§ 701.15(2) & 879.23(5). While both the probate court and circuit court statutes include all of the other
categories of individuals (incapacitated, unascertainable, and unborn) on this list, only the probate court expressly
mentions minors as being able to be virtually represented by a person with a substantially identical interest.
3
Id. §§ 701.15(2) & 879.23(5). The circuit court provision states that “the court may dispense with or terminate
the appointment of a guardian ad litem for [any person who is legally incapacitated, unascertained, or unborn] if
there is a legally competent person who is a party to the proceeding and has a substantially identical interest in it.”
Likewise, the probate court provision states that “the court may dispense with or terminate the appointment of a
guardian ad litem for an interested person who is a minor, an individual adjudicated incompetent, not in being, or
presently unascertainable, if there is a living person, of full legal rights and capacity, who is a party to the
proceeding and has a substantially identical interest in it.
4
Id. §§ 701.15(2) & 879.23(5). Neither statute appears to have a conflict of interest provision relating to virtual
representation.
WYOMING
1
WYO. STAT. ANN. § 4-10-303(a)(vi). A parent with primary legal custody may represent and bind his or her
incapacitated or minor child if a legal representative has not been appointed to the extent there is no conflict of
interest. This provision also provides that a parent may represent and bind his or her unborn children and the
unborn descendants of each child.
49
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 4-10-303(a)(iii).
3
If a conservator of the ward’s estate has been appointed, the conservator may represent and bind the ward’s
estate. Id. § 4-10-3-03(a)(i). A guardian may represent and bind the ward if a conservator of the ward’s estate has
not been appointed. Id. § 4-10-303(a)(ii). “Guardian” is defined in § 3-1-101 as the person qualified by the court
to exercise powers on behalf of a minor or incompetent person, and “conservator” is defined in the same provision
as a person appointed by the court to have custody and control of the property of the ward.
4
Id. § 4-10-302. The holder of a general testamentary power of appointment may bind and represent those whose
interests are subject to his or her power. Those subject include: permissible appointees, takers in default or
otherwise. Unlike the UTC, representation is not limited by instances where no conflict of interest exists.
5
Id. § 4-10-304. This section is based on the UTC. Because UTC § 304 makes it clear in its comments to this
provision that “substantially identical interests” include vertical representation, it can be assumed that the same
applies here as well even though it is not explicit in the statute.
6
Adding to the list of matters that can be solved by a nonjudicial agreement, Wyoming includes 1) an election to
treat the trust as a qualified spendthrift under Article 5, and 2) modification of the trust in order to comply with
§ 4-10-510. Id. § 4-10-111.
7
Unlike in the UTC, “interested persons” is defined as noncharitable beneficiaries eligible to receive current
distributions from the trust, the settlor, if living, the trustee and the trust protector, if any. Id. § 4-10-111(a).
UTC
1
According to UNIF. TRUST CODE § 303(6), a parent may bind and represent his or her unborn or minor child if a
guardian for the descendant has not been appointed.
2
An agent with the authority to act with respect to a particular question may represent and bind the principal. Id.
§ 303(3).
3
A guardian may represent and bind the ward if a conservator for the ward’s estate has not been appointed. Id.
§ 303(2). “Guardian” is defined in § 103 as a person appointed by the court to make decisions regarding the
support, care, education, health and welfare of a minor or adult, and “conservator” is defined in the same
provision as a person appointed by the court to administer the estate of a minor or adult individual.
4
Id. § 302. The holder of a general testamentary power of appointment may bind and represent those whose
interests are subject to his or her power which include permissible appointees, takers in default or otherwise.
5
Id. § 304. The comments to this section make clear that “substantially identical interests” include vertical
representation.
6
In the UTC, the term “interested persons” is defined as persons whose consent would be required to achieve a
binding settlement were the settlement to be approved by the court.
ACTIVE 7743880v.13