§ 11-1.11 Limited power of fiduciary to amend trust for certain tax

purposes

(a) Unless expressly prohibited by the terms of the instrument
creating an express trust, the terms of the trust instrument shall be
deemed to include the following provision granting the trustee, which
term as defined in paragraph (h) of this section may mean the executor
or administrator, a limited power to amend:

"The trustees shall have the limited power to amend the administrative
and other provisions of the trust which have no significant dispositive
effects within the meaning of paragraph (i) of this section on an
interest described in such paragraph, by an acknowledged instrument in
writing, in order to:

(i) achieve a qualified reformation of a reformable interest into a
qualified interest for purposes of the charitable deduction as permitted
by section 2055(e)(3) or 2522(c)(4) of the United States Internal
Revenue Code ("Code") and the regulations thereto, or achieve a
reformation of a charitable remainder trust permitted by section 664 of
the Code and the regulations thereto;

(ii) meet the requirements of a qualified domestic trust for a
surviving spouse who is not a citizen of the United States under
sections 2056(d) and 2056A(a) of the Code and the regulations thereto;
and

(iii) meet the requirements of a personal residence trust under
section 2702(a)(3) or to meet the definition of a qualified interest
under section 2702(b) of the Code, and the regulations thereto."

(b) (1) No trustee may exercise any power created under paragraph (a)
of this section with respect to any trust that is exempt from tax
imposed by the provisions of chapter 13 of the Code or has an inclusion
ratio, as defined in section 2642(a) of the Code, of zero if the
exercise of such power would cause such trust to lose in whole or in
part its exemption from the tax imposed by the provisions of chapter 13
of the Code or cause such trust to have an inclusion ratio, as defined
in section 2642(a) of the Code, of more than zero.

(2) If the creator of an express trust or a beneficiary (whether
current, future or contingent) of income or principal of an express
trust is serving as a trustee of the express trust, the creator or such
beneficiary cannot participate in the exercise of the power to amend
such express trust pursuant to this section. If two or more trustees are
serving, the power to amend such express trust may be exercised by the
trustees who are not so disqualified.

(c) Such amendment shall be embodied in one or more writings signed
and acknowledged in the manner required by the laws of this state for
the recording of a conveyance of real property by the trustee and filed
in the office of the clerk of the court having jurisdiction over the
instrument. At least thirty (30) days prior to such filing, notice of
such amendment, together with a copy of the amendment, shall be sent by
registered or certified mail, return receipt requested, or by personal
delivery to all persons interested in the trust, or to the guardian of
the property, committee, conservator, adult guardian, or personal
representative of any such persons under a disability, or to the parent
or person with whom a minor resides. Such notice shall include the
following statement: "If you wish to object to the proposed amendment,
you should notify the trustee (executor or administrator) of your
objections in a writing signed and acknowledged by you before a notary
in the manner required by the laws of the state of New York for the
recording of a conveyance of real property. Such written objection must
be personally delivered or mailed to the trustee (executor or
administrator) by registered or certified mail, return receipt
requested, within thirty (30) days of the date when the notice was
personally delivered or mailed to you. If no such objection to the
proposed amendment is made by any person interested in the trust, such
amendment will become effective upon its filing in the court having
jurisdiction over the trust." Proof by affidavit of such mailing or
delivery of the notice or by signed acknowledgement of receipt by the
person noticed, shall be filed in the office of the clerk of the court
where such amendment is filed prior to or simultaneously with the filing
of such amendment. If it appears by affidavit that the name or address
of any person interested in the trust is unknown, mailing to such person
of the notice shall not be required.

(d) Such amendment shall be effective upon filing as required by
paragraph (c) of this section, provided that no written objection to
such amendment, signed and acknowledged in the manner required by the
laws of the state for the recording of a conveyance of real property by
any person interested in the trust, has been received prior to such
filing by the trustee, by personal delivery or by registered or
certified mail, return receipt requested. If no such written objection
has been received by the trustee prior to such filing, no judicial
proceeding or consent of any person interested in the trust shall be
required.

(e) Unless otherwise provided in the amendment, the amendment shall be
deemed to have been effective in the case of a will as of the date of
death of the decedent, and in the case of any other instrument on the
date it became irrevocable.

(f) The limited power to amend granted by this section shall be
exercised only if acted upon by all of the trustees, except as otherwise
provided by subparagraph (b)(2) of this section.

(g) For the purposes of this section, the phrase "all persons
interested in the trust" shall mean all the persons upon whom service of
process would be required in a proceeding for the judicial settlement of
the account of the trustee, taking into account section three hundred
fifteen of the surrogate's court procedure act.

(h) In any case where the Code requires that an election or other
action be made or taken by the executor or if no trustee of a trust
under a will has qualified, the term "trustee" as used in this section
shall mean the executor or administrator of an estate. In any such case,
the trustee shall comply with any action taken by the executor or
administrator under this section.

(i) An amendment pursuant to paragraph (a) of this section shall be
conclusively deemed to have "no significant dispositive effect" if the
difference between the actuarial value determined as of the effective
date of the amendment

(i) of the interest reformed pursuant to subparagraph (a)(i) or
(a)(ii) qualifying for the marital or charitable deduction which is
involved in a reformation pursuant to subparagraph (a)(i) or (a)(ii); or

(ii) of the interest retained by the transferor or any applicable
family member reformed pursuant to subparagraph (a)(iii) in order to
qualify as a "personal residence trust" or a "qualified interest" under
section 2702 of the Code;
and the actuarial value of the respective interest prior to such
amendment does not exceed five percent of the actuarial value of such
pre-amendment interest.

(j) The term "trust" shall include an arrangement treated as a "trust"
for the purposes of the Code.

(k) The fact that a testamentary trust cannot be revoked, altered or
amended by reason of the testator's death, or that the will or trust
instrument states that the trust is irrevocable and/or cannot be altered
or amended, shall not be deemed to constitute an express prohibition
within the meaning of the phrase "unless expressly prohibited by the
terms of the instrument creating an express trust."

(l) References to sections of the United States Internal Revenue Code
or Code shall refer to the United States Internal Revenue Code of 1986
as amended from time to time, or to corresponding provisions of
subsequent internal revenue laws, and regulations thereto; and shall
also refer to corresponding provisions of state law.