Trust Decanting Ability

Previously, if someone wanted their Irrevocable trust to be amended, then they had two choices; get a court order or have all of the beneficiaries sign off on any amendment. As you could imagine, going to court is a long and expensive process, and having two or more siblings agree on anything is usually a non-starter (do you remember your Thanksgiving dinner where the seating arrangement creates the need for diplomacy). So, estate planning attorneys created the ability to “decant” the trust and create a new trust!!

The ability to decant is a very powerful tool. It allows the trustee to remove the assets from the original trust and into a new trust. The reason for this ability is to have the trust take advantage of a change in circumstances. This could be a new tax code that would reduce the taxes on the trust, birth of new beneficiaries, closing of a charity beneficiary, or myriad of other reasons. However, with great power comes great responsibility.

The trustee has the power to decant and rewrite the trust. It is critically important to appoint trustees who will follow the original wishes of the grantor of the trust. I normally have a trust protector provision in my trusts to assist in this process and ensure that an original intent is being met by the trustee.

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