May 22, 2019 Article

The Dangers of Decanting

Early cases indicate that trust decanting eliminating or reducing beneficial interests will be closely scrutinized and could be invalidated.

By Thomas J. McIntyre

Irrevocable trusts are an important estate-planning tool with many benefits, but at the cost of a trust that cannot be materially altered if circumstances later change. Irrevocable trust planning therefore lacks the flexibility available to those with only a will or revocable trust—flexibility to amend dispositive terms, remove beneficiaries, add beneficiaries, and the like. But “a trustee with decanting power has the authority to amend an unamendable trust, in the sense that he or she may distribute the trust property to a second trust with terms that differ from those of the original trust.” Morse v. Kraft, 992 N.E.2d 1021, 1024 (Mass. 2013). Decanting has become an important tool for estate planners. More than half of the states have enacted decanting statutes. The Uniform Trust Decanting Act (UTDA) was adopted in 2015. Several others states judicially permit decanting as a matter of their common law.

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