Like many people, you may have included a trust agreement in your overall estate plan. If that trust is an irrevocable trust, you were likely told that you cannot modify, amend, or revoke the trust. What happens though if circumstances change, and your irrevocable trust needs to be modified or amended? While it is always best to operate under the assumption that an irrevocable trust cannot be changed, there may be a way to make changes to an irrevocable trust by “decanting” the trust. The Beverly trust attorneys at DeBruyckere Law Offices explain when and how you can decant a trust in Massachusetts.
Trust Basics
A revocable trust can be modified at any time and for any reason as long as the Settlor (creator of the trust) is living and capable of carrying out the desired modification. An irrevocable trust, however, is intended to be “irrevocable” from its inception, meaning it cannot be revoked and likely has strict limitations on the ability to modify (if it can be modified at all).
Why Might I Want to Modify an Irrevocable Trust?
There are an infinite number of reasons why you might want to modify an irrevocable trust, including changes in tax laws, the value of trust assets, and the life circumstances of the beneficiaries. One common reason, however, is when a spouse is the remainder beneficiary of a revocable trust that became irrevocable following the death of the Settlor. Although the Trustee may have significant discretion regarding distributions to the surviving spouse, the Trustee may decide that current circumstances call for a modification of the original trust. Because the trustee does not have the authority to make those changes, decanting the trust may be the best option. Other specific reasons why you might want to modify an irrevocable trust include things such as:
- To correct an error in the original trust agreement.
- Modifying the ages of distributions for the remainder beneficiaries
- Providing increased asset protection ability to the Trustee.
- Changing the jurisdiction of the trust for tax purposes.
- Adding a power of appointment
- Including or changing the successor Trustee
- Including provisions for a special needs beneficiary
What Does It Mean to “Decant” a Trust?
Even if you have never heard the term used in reference to a trust agreement, you have likely heard someone refer to a “decanter of wine.” A decanter is the glass bottle into which wine is “decanted.” Decanting wine means pouring the wine from one bottle into another to get rid of any sediment in the original bottle. Decanting a trust can be understood using the same analogy. The desirable parts of one trust are “poured” into another trust, leaving the undesirable parts of the original trust behind. A trust can be decanted in two ways:
- By creating a new trust with new terms and distributing the assets of the old trust to the new trust.
- By distributing the assets of the old trust to a pre-existing trust with more favorable terms.
Trust Decanting in Massachusetts
The legal authority to decant a trust can be provided by the Settlor within the trust terms or may be authorized by state law. About half of the states have laws in place that specifically allow for decanting a trust. Massachusetts does not have a statute that specifically allows decanting a trust; however, case law permits decanting a trust if the trust instrument authorizes the Trustee to remove the assets from one Irrevocable Trust and place them in a new irrevocable trust with the same beneficiaries.
Even if a trust can legally be decanted, there are several reasons why decanting may not be possible, including:
- If the original trust agreement specifically prohibits decanting.
- If a beneficiary’s right to distributions is already effective.
- The Trustee’s authority/discretion is limited by the trust agreement. (Most trusts provide a least some discretion to the Trustee to make distributions for the “health, support, and education of the beneficiaries”).
Contact a Beverly Trust Attorney
For more information, please sign up for one of our upcoming FREE seminars. If you have additional questions or concerns relating to decanting a trust, contact the experienced trust attorneys at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
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