On Demand

Amending Irrevocable Trusts in New York: Why Decanting Might be the Best Solution


Created on September 14, 2016




As a general rule, irrevocable trusts cannot be changed, but, notwithstanding that rule, changes to outside circumstances, beneficiaries, and laws, including property and tax laws, or errors in trust drafting, may force a trustee to consider trust modification. Traditional methods such as reformation or construction may offer a remedy, but trust decanting has emerged as one of the best modern solutions. In this course, attorney Joe La Ferlita details the history, philosophical underpinnings and uses of decanting, and the statutory obligations and requirements of New York's current decanting statute.

Learning Objectives:

  1. Understand the issues, including: irrevocable trusts and the basics about decanting, the problems with irrevocable trusts and how decanting helps solve those issues, and real-life examples
  2. Recognize the traditional solutions, including: reformation, modification, and construction
  3. Identify alternative solutions, including: splitting up a trust into multiple trusts, modification, and premature termination, as well as the grantor's intent and how the Claflin Doctrine and Equitable Deviation impact an irrevocable trust
  4. Discuss decanting, perhaps the best solution, including New York's statute (the nation's first decanting statute enacted in 1992), the legislative intent and how the IRS impacted the statute, as well as what the trends are saying
  5. Break down New York's current decanting statute, EPTL 10-6.6
  6. Grasp the rules applicable when trustees do and do not have unlimited discretion, as well as select rules that are applicable regardless of trustee discretion
  7. Address the tax consequences of decanting, namely the EPTL tax implications
  8. Propose recommendations concerning income tax, estate and gift tax, and GSTT tax

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