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decanting of trusts

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More Authority For Trust Decanting?

August 19, 2014

Authors

Luke Lantta

More Authority For Trust Decanting?

August 19, 2014

by: Luke Lantta

Does the settlor’s grant of a broader power to a trustee necessarily, by implication, include the grant of the lesser power?  Practitioners have often answered “yes” to this question when it comes to justify so-called ‘common law’ trust decanting.  So, for example, if the settlor gave the trustee the discretionary authority to distribute the entirety of the corpus without regard to any standard, the argument is that the grant of that broad power would necessarily include the lesser power to decant.

In a different context, in an unpublished opinion in Leonard v. Maher (2014 Mass. App. Unpub. LEXIS 885) (Rule 1:28 decision), the Appeals Court of Massachusetts used similar logic to conclude that where the settlors, trustees, grantors and beneficiaries of a trust are the same people, the power to Read More

Massachusetts Supreme Court Approves Decanting in Kraft Family Trust

August 19, 2013

Authors

Tiffany McKenzie

Massachusetts Supreme Court Approves Decanting in Kraft Family Trust

August 19, 2013

by: Tiffany McKenzie

What does a trustee do when an irrevocable trust needs to be modified?  Circumstances or laws may have changed in ways that could not have been anticipated at the time the trust was drafted.  In the past, a trustee who wanted to change some aspect of an irrevocable trust had few options, other than a court order to reform the trust which can be a costly and lengthy process.  Now, many states have alleviated the necessity of court approval to modify trusts by permitting “decanting.”

Decanting is the term generally used to describe the distribution of trust property to another trust pursuant to the trustee’s discretionary authority to make distributions to, or for the benefit of, one or more beneficiaries.  Decanting may be permitted by statute, by the terms of the original trust or by court-created law.  Currently, Massachusetts has

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