Trust Modification, Termination & Decanting Articles – Decanting2020-02-12T15:11:08-07:00

Trust Modification, Termination & Decanting Articles
Decanting

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Trust Decanting-Introduction2020-02-04T17:49:27-07:00

In September, 2018, California enacted the Uniform Trust Decanting Act.

That act allows trustees to modify the terms of a trust (with some limitations), without court approval or the consent of the beneficiaries, by “decanting” the trust.

What is Decanting?

Decanting is the legal procedure by which assets of a trust (the “first trust”) are “decanted” or “poured” into a new trust (the “second trust”). The second trust is created by the trustee. It has new terms that meet the needs of changing circumstances for the beneficiaries and trustees. The new statute also allows a trustee to modify the terms of the first trust without creating a second trust.

Types of Trusts that Can Be Modified

The California decanting statute allows for the decanting of irrevocable trusts and of revocable trusts where revocation requires the consent of the trustee or a person who has a right or concern that is contrary to the interest of the Settlor/Grantor/Trustor.

A charitable trust cannot be decanted.

A trust that includes a provision expressly prohibiting the use of decanting cannot be decanted.

Terms a Trustee Can Modify

In exercising a decanting power, the trustee must act in accordance with its fiduciary duties and the purposes of the first trust.

There are limits on the terms a trustee can modify. The limitations depend on a trustee’s specific power in the Trust to make distributions to the beneficiaries.

Ascertainable Standard Beneficiaries

A trustee with the power to make distributions to beneficiaries subject to an “ascertainable standard,” such as for health, education, maintenance, or support, has what is called “limited distributive discretion.” A trustee with this limited discretion can modify only administrative provisions, such as successor trustee designations. The trustee cannot materially change a beneficiary’s interest in the trust.

Unlimited Discretion

A trustee with the power to make distributions in his or her unlimited discretion is deemed to have “expanded distributive discretion.” A trustee with this discretion has the power to modify administrative and dispositive provisions. This would include the power to change a beneficiary’s interest (subject to certain limitations).

What Decanting does not permit

In either case, trustees cannot make the following modifications:

  • Add as a current beneficiary in the second trust a person who is not a current beneficiary of the first trust;
  • Include as a presumptive remainder beneficiary or successor beneficiary in the second trust a person who is not a current beneficiary, presumptive remainder beneficiary, or successor beneficiary of the first trust;
  • Reduce or eliminate a vested interest of a beneficiary; or
  • Make any change that affects the tax benefits of the first trust, such as qualifying for a marital deduction or a charitable deduction.

Example

For example, if A and B are the only current beneficiaries of the first trust and have a right to a mandatory distribution of income, the trustee will not be able to utilize the decanting power to reduce or eliminate the distribution of income to A and B in the second trust. Further, the trustee will not be able to add C as a current beneficiary of the second trust.

Administrative Changes

Decanting can be used to change the situs and governing law provisions to move the trust out of California to another jurisdiction, assuming there is sufficient nexus (connection such as a trustee in that jurisdiction) to the new jurisdiction.

Notice Requirements

No consent is necessary for a trustee to exercise the decanting power, but the trustee must provide notice to the following persons:

  • Each settlor/grantor/trustor of the first trust;
  • Each beneficiary who is entitled to a distribution of income or principal of the first trust, or would be entitled to such a distribution if the first trust terminated;
  • Each holder of a presently exercisable power of appointment over any part of the first trust;
  • Each person with the right to currently remove or replace the trustee;
  • Each other trustee of the first trust;
  • Each trustee of the second trust; and
  • If applicable (such as for a charitable trust), the Attorney General.

The notice must also include other specific items outlined in the statute.

Conclusion

The powers granted to a trustee under the new decanting statute are seriously limited. In addition, there are unknown tax effects of the new decanting rules. Finally, if the Settlor wishes to give more flexibility to trust modification, naming a Trust Protector will go much farther in achieving that than the decanting statute permits.

Nevertheless, this means the trustee of a California trust no longer needs the consent of beneficiaries or court approval to modify certain terms of a trust. But, this power has several limitations and requires the trustee seeking to decant to provide notice to a number of persons. If you are a beneficiary of a California trust, this means certain terms of the trust can be modified without your approval. Any trustee who is seeking to modify the terms of a trust, or any beneficiary who has a concern about any potential modification of a trust, should contact  YAHNIAN LAW CORPORATION.

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