(760 ILCS 5/16.1)
(a) Representation by person having substantially identical interest; contingent remainder beneficiaries.
(1) To the extent there is no conflict of interest
between the representative and the person represented, a minor, disabled, or unborn person, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another individual having a substantially identical interest with respect to the particular question or dispute; provided, however, that such person is not otherwise represented by a court appointed guardian as provided in the next sentence. 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 guardian shall represent and bind that person for purposes of this subsection (a)(1).
(2) If all primary beneficiaries of a trust either
are adults and not disabled, or have representatives in accordance with subsection (a)(1) who are adults and not disabled, the actions of such primary beneficiaries, or their respective representatives, shall represent and bind all other persons who have a successor, contingent, future, or other interest in the trust and who would become primary beneficiaries only by reason of surviving a primary beneficiary.
For purposes of this Section, "primary beneficiary"
means a beneficiary who is either: (i) currently eligible to receive income or principal from the trust or (ii) assuming nonexercise of all powers of appointment, will be eligible to receive a distribution of principal from the trust if the beneficiary survives to the final date of distribution with respect to the beneficiary's share.
(3) If all presumptive remainder beneficiaries
either are adults and not disabled, or have representatives in accordance with subsection (a)(1) who are adults and not disabled, the actions of such presumptive remainder beneficiaries, or their respective representatives, shall represent and bind all other beneficiaries who have a successor, contingent, or other future interest in the trust. For purposes of this Section, "presumptive remainder beneficiaries" means, as of the date of determination and assuming nonexercise of all powers of appointment, all beneficiaries who either (A) would be eligible to receive a distribution of income or principal if the trust terminated on that date, or (B) would be eligible to receive a distribution of income or principal if the interests of all beneficiaries currently eligible to receive income or principal from the trust ended without causing the trust to terminate.
(4) The consent of a person who may represent and
bind another person in accordance with this Section is binding on the person represented, and notice to a person who may represent and bind another person in accordance with this Section has the same effect as if notice were given directly to the other person.
(b) Total return trusts. This Section shall apply to enable conversion to a total return trust by agreement in accordance with subsection 5.3(b) of the total return trust provisions of Section 5.3 of this Act, whether such agreement is made between the trustee and (A) all primary beneficiaries, either individually or by their respective representatives in accordance with subsection (a)(1), or (B) all beneficiaries currently eligible to receive income or principal from the trust and all beneficiaries who are presumptive remaindermen of the trust, in each case either individually or by their respective representatives in accordance with subsection (a)(1).
(c) Representation of charity. If a trust provides a beneficial interest or expectancy for one or more charities or charitable purposes that are not specifically named or otherwise represented (the "charitable interest"), the Illinois Attorney General may, in accordance with this Section, represent, bind, and act on behalf of the charitable interest with respect to any particular question or dispute, including without limitation representing the charitable interest in a nonjudicial settlement agreement or in an agreement to convert a trust to a total return trust in accordance with subsection 5.3(b) of the total return trust provisions of Section 5.3 of this Act. This subsection (c) shall be construed as being declarative of existing law and not as a new enactment. Notwithstanding any other provision, nothing in this Section shall be construed to limit or affect the Illinois Attorney General's authority to file an action or take other steps as he or she deems advisable at any time to enforce or protect the general public interest as to a trust that provides a beneficial interest or expectancy for one or more charities or charitable purposes whether or not a specific charity is named in the trust.
(d) Nonjudicial settlement agreements.
(1) For purposes of this Section, "interested
persons" means the trustee and all other persons and parties in interest whose consent or joinder would be required in order to achieve a binding settlement were the settlement to be approved by the court.
(2) Except as otherwise provided in subsection
(d)(3), interested persons, or their respective representatives determined after giving effect to the preceding provisions of this Section, may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.
(3) A nonjudicial settlement agreement is valid only
to the extent its terms and conditions could be properly approved under applicable law by a court of competent jurisdiction.
(4) Matters that may be resolved by a nonjudicial
settlement agreement include but are not limited to:
(A) interpretation or construction of the
(B) approval of a trustee's report or
(C) exercise or nonexercise of any power by
(D) the grant to a trustee of any necessary
or desirable administrative power;
(E) questions relating to property or an
interest in property held by the trust;
(F) resignation or appointment of a
(G) determination of a trustee's
(H) transfer of a trust's principal place
(I) liability or indemnification of a
trustee for an action relating to the trust;
(J) resolution of disputes or issues
related to administration, investment, distribution or other matters;
(K) modification of terms of the trust
pertaining to administration of the trust; and
(L) termination of the trust, provided that
court approval of such termination must be obtained in accordance with subsection (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 property distributed as agreed by the parties to the agreement or otherwise as the court determines equitable consistent with the purposes of the trust.
(5) Any interested person may request the court to
approve any part or all of a nonjudicial settlement agreement, including whether any representation is adequate and without conflict of interest, provided that the petition for such approval must be filed before or within 60 days after the effective date of the agreement.
(6) An agreement entered into in accordance with
this Section shall be final and binding on the trustee and all beneficiaries of the trust, both current and future, as if ordered by a court with competent jurisdiction over all parties in interest.
(7) In the trustee's sole discretion, the trustee
may, but is not required to, obtain and rely upon opinion of counsel on any matter relevant to this Section, including that any agreement proposed to be made in accordance with this Section could be properly approved by the court under applicable law, or that there is no conflict of interest between a representative and the person represented or among those being represented with respect to a particular question or dispute.
(e) Application. On and 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.
(Source: P.A. 96-479, eff. 1-1-10.)