Introduction: The What’s and Why’s of Decanting

For sommeliers, “decanting” means pouring wine from its bottle into a decanter to separate the sediment and aerate the wine, enhancing its flavor and aroma. For estate planners, “decanting” means distributing trust assets from one trust to another, typically to discard provisions that have aged poorly (e.g., mandatory payouts at a set age) and to enhance the provisions of the trust with new, modern features (e.g., to implement a state’s new directed trust statute).

The power to decant arguably exists under American common law, and many state legislatures have codified it. New York led the charge in 1992, and since then, states have adopted varied statutory frameworks. In 2015, the Uniform Trust Decanting Act (the “UTDA”) sought to unify the approach to decanting, though as of August 2025, only twenty states have enacted it (which is sixteen fewer states than those that have adopted the Uniform Trust Code). The result is a complex patchwork of decanting statutes, illustrating the varied approaches and restrictions – or lack thereof – that states choose to adopt for their own decanting powers.

However, state statutes are not the only option. A trust agreement can itself grant trustees explicit decanting authority (referred to herein as a “private decanting power”), providing flexibility without resorting to a statutory framework. A private decanting power can ensure maximum flexibility, allowing trustees to revise and/or modernize the trust without the issues involved with statutory decanting, as discussed below.

This paper explores how to draft a private decanting power, focusing on the major elements to be included and the decisions to be made. To highlight the range of options, we examine three statutory decanting powers to give context to the design decisions we then propose in structuring a private decanting power:

• The UTDA: Given this is the most prevalent statutory framework for a decanting power, we discuss this model first in each of the sections below to set the stage with the approach many states have elected to take.
• New York: New York was the first state to introduce a statutory decanting power. Its current approach still has significant drawbacks and some odd quirks that can frustrate an attempt to decant.
• Arizona: Arizona struck a balance between enacting a very liberal decanting statute (at 314 words, it is less than ten percent the length of New York’s decanting statute) and still imposing some important guardrails on the exercise of the decanting power. However, the statute highlights the issues that arise when there is too little direction or clarity on the extent of a trustee’s authority to decant using a statutory power.

Designing a Private Decanting Power: The Elements and Decision Points

The elements below form the backbone of both statutory decanting powers and private decanting powers. Throughout the following discussion, the term “First Trust” refers to the trust distributing property, and the term “Second Trust” refers to the trust receiving property.

1. How should trustees consider and be constrained by the settlor’s intent when modifying a trust by decanting?

Decanting is rooted in a trustee’s efforts to act in the best interests of the beneficiaries in a manner consistent with a settlor’s intent in creating the First Trust. The theory underlying decanting is that a trustee’s power to make a distribution outright to a beneficiary intrinsically includes the power to make a lesser distribution – rather than an outright distribution, a distribution in trust for the benefit of the beneficiary. This is an economically meaningful power as distributions outright to beneficiaries extinguish the creditor protection and fiduciary management benefits, as well as the potential tax savings, which are afforded to property held in trust. Thus, the UTDA and other state statutes treat a discretionary distribution power over trust principal[1] as inherently including a power to distribute such property in further trust for the benefit of the beneficiaries. The UTDA and most state statutes bifurcate the decanting power based on the level of discretion the trustee has in making distributions: a broad decanting power when the trustee can make unlimited discretionary distributions, and a more limited decanting power when the trustee’s distribution power is limited (e.g., by an ascertainable standard). Importantly, the trustee – and not the settlor – is the one who determines whether to modify a trust by exercising a decanting power. However, the extent of the trustee’s ability to change the trust terms via decanting is generally constrained by the settlor’s intent in creating the First Trust.

Under the UTDA, when exercising the decanting power, the trustee must act in accordance with their fiduciary duties, including the duty to act in accordance with the purposes of the First Trust.[2] The purposes of the trust can be understood first by its terms, which are defined to include “the manifestation of the settlor’s intent regarding a trust’s provisions as (i) expressed in the trust instrument or (ii) established by other evidence that would be admissible in a judicial proceeding.”[3] Thus, in determining the purposes of the First Trust, trustees should not rely solely upon the express terms of the trust agreement – instead, they must also consider extrinsic evidence from sources outside the trust agreement that is informative as to the trust’s purpose. Commentary to the UTDA notes that the exercise of the decanting power need not be in literal compliance with the First Trust’s terms, but should be an effectuation of the settlor’s broader purposes or the settlor’s probable intent under the circumstances present at the time of the decanting (which naturally includes considering extrinsic evidence to understand how the settlor would have considered any changed circumstances).[4] The UTDA also includes some presumptions as to what a settlor’s purpose for the First Trust likely included. The UTDA Comment notes that “efficient administration of the trust” can generally be understood to be among the settlor’s purpose, as would achieving beneficial tax objectives or minimizing overall tax liabilities.[5] The UTDA Comment further notes that the settlor’s purpose often includes avoiding fruitless, needless dissipation of the trust property (e.g., if a beneficiary has a drug or gambling addiction, experiences issues with creditors or is unfit to manage their own assets).[6]

New York’s decanting statute goes further than the UTDA in expressly restricting the exercise of the statutory decanting power if “there is substantial evidence of a contrary intent of the creator and it cannot be established that the creator would be likely to have changed such intention under the circumstances existing at the time of the exercise of the power.”[7] The statute notes that the terms of the First Trust alone “are not to be viewed as substantial evidence of a contrary intent of the creator unless the [First Trust] expressly prohibits the exercise of the power in the manner intended by the authorized trustee.”[8] New York recognizes that where a trustee has the power to distribute outright, it is often consistent with the settlor’s intent to distribute property in further trust absent explicit evidence to the contrary.

Arizona’s decanting statute takes the opposite tack with respect to extrinsic evidence of the settlor’s intent: it permits trustees to ignore such evidence completely. The statute provides that unless the terms of the trust agreement “expressly provide otherwise,” the trustee has the power to decant to the extent of the broad authority described in the statute.[9] Arizona may be best described as adopting the view that where the settlor empowers the trustee with discretionary distribution authority, absent any express limitation on that authority in the trust agreement, the trustee may freely modify the terms of the First Trust (within the scope of their fiduciary duties and the few limits of the decanting statute).

Take-Aways for Structuring a Private Decanting Power:

Each of the state statutes recognizes express prohibitions on the power to modify the terms of a trust by decanting. Where the statutes differ is the extent to which extrinsic evidence of the settlor’s intent beyond the four corners of the trust agreement should confine the trustee’s power to decant. The approach of the UTDA and New York’s decanting statute is to take into consideration extrinsic evidence of the settlor’s intent, though the UTDA arguably limits such evidence to that which could be admitted in court (raising the bar for what constitutes proof of the settlor’s intent). New York instead requires that there be substantial evidence of a contrary intent that is not countermanded by evidence of how the settlor would change that intent given the present circumstances. These approaches raise the specter of trust litigation by beneficiaries who challenge the trustee’s interpretation of the settlor’s intent, potentially chilling the use of these statutory powers to effectuate important modifications. Arizona’s decanting statute arguably provides more clarity in administration by requiring only that the trustee consider the express terms of the trust agreement, with no consideration paid to extrinsic evidence of the settlor’s intent.

Proposed Approach for Private Decanting Power:

We believe that the better approach is that taken by Arizona. A trust is best administered in an environment where the rules of the road are known by all, restricting settlor’s intent to that which is explicitly stated within the four corners of the trust agreement itself. When drafting a trust, it should identify the provisions that may or may not be omitted or modified by the exercise of a decanting power (whether private or statutory), i.e., by using a carve-out along the following lines: “This Section titled “______” shall not be omitted or modified by any exercise of the Decanting Power or any statutory or common law power to modify the Agreement or decant trust property.”

This approach also addresses the concern among some practitioners that settlors may not understand that trustees, using statutory decanting powers, are able to significantly modify the terms of their trusts. By including a private decanting power, that possibility is directly raised with the settlor, who is then able to expressly state their intent for future modifications. Thus, in drafting the trust, practitioners should confirm with the settlor whether specific restrictions and limitations the settlor elected for their trust (i.e., no distributions to married beneficiaries without a prenuptial agreement; beneficiaries may not become the fiduciary who manages the trust’s investments) are intended to be modifiable later by a trustee via the exercise of a decanting power. The settlor, trustees and beneficiaries are then certain of the limits of the decanting power, reducing unnecessary friction and easing administration of the trust.

2. Who can exercise the broad decanting power, and what discretionary distribution power do they need?

The extent of a trustee’s statutory decanting authority usually turns on the extent of such trustee’s power to make distributions. Generally, the exercise of the broad decanting power (i.e., one which reaches to the full extent of the statutory authority) hinges on the ability of the trustee to make a fully discretionary distribution of the trust property to one or more beneficiaries. This discussion in Section 2 focuses on the exercise of this broad decanting power.

Under the UTDA, the term for such a fiduciary is the “authorized fiduciary,” and such authorized fiduciary includes (1) a fiduciary (other than a settlor) who has discretion to distribute or direct a trustee to distribute part or all of the principal of the First Trust to one or more current beneficiaries, (2) a special fiduciary appointed by a court, or (3) a special-needs fiduciary with the discretion to distribute part or all of the income (or who is required to distribute part or all of the principal or income) of the First Trust to one or more current beneficiaries.[10] Such authorized fiduciary must have a discretionary distribution power that is not limited to an ascertainable standard or a reasonably definite standard to make full use of the decanting power.[11]

Under New York’s decanting statute, the term for such a fiduciary is the “authorized trustee,” and such authorized trustee is one who has authority to pay trust principal to one or more current beneficiaries, excluding trustees who are (1) the settlor or (2) a beneficiary to whom income or principal must be paid (currently or in the future) or to whom income or principal may be distributed in the discretion of the trustee (other than by exercise of a power of appointment held in a non-fiduciary capacity).[12] Such an authorized trustee must have a distribution power with “unlimited discretion,” which means an unlimited right to distribute principal that is not modified in any manner, to use the broad decanting power.[13]

Under Arizona’s decanting statute, no such term is used for an authorized fiduciary – instead, the power to decant is held by any trustee with discretion to make distributions (either of principal or income), regardless of whether a standard is provided in the trust instrument with respect to such distribution power.[14]

Take-Aways for Structuring a Private Decanting Power:

The New York statute is the most restrictive with respect to who can exercise the decanting power. While the UTDA and Arizona permit beneficiaries who are serving as trustees to exercise the power (provided they have the requisite distribution authority), New York prohibits certain beneficiaries from participating in a decanting decision. The statute prohibits “a beneficiary to whom income or principal must be paid currently or in the future, or who is or will become eligible to receive a distribution of income or principal in the discretion of the trustee” from exercising the decanting power.[15] An argument could be made that the reference to beneficiaries who “will become eligible to receive a distribution” captures all possible future beneficiaries of the First Trust. However, the better read is likely that only current beneficiaries and presumptive remainder beneficiaries (which are the beneficiaries to whom notice of the decanting is owed under the statute) are prohibited from exercising the decanting power. Importantly, New York’s approach prevents certain scenarios that could raise gift tax concerns. Take, for example, the case of a settlor who creates a trust for their only child who does not yet have descendants, with the settlor’s heirs-at-law as the remainder beneficiaries, and who appoints their sibling as the trustee to make fully discretionary distributions. In such a case, the sibling cannot exercise either the broad or limited New York statutory decanting power because such sibling is a presumptive remainder beneficiary of the trust – however, under the UTDA and in Arizona, such sibling could exercise the decanting power. The risk under the UTDA and in Arizona is that an exercise of the decanting power by a presumptive remainder beneficiary could be a deemed gift to the other beneficiaries, depending on the nature of the changes to the First Trust.

Arizona’s approach, on the other hand, is extremely liberal – the only restriction it places on a beneficiary-trustee exercising its decanting power is to require that any ascertainable distribution standard applicable to such beneficiary be the same (or more restrictive) in the Second Trust. Arizona thereby allows beneficiary-trustees to rewrite the terms of their own trusts, creating ample opportunity for a settlor’s intended structure to be significantly altered for their own benefit. Moreover, the ability of a beneficiary-trustee to rewrite the terms of their trust has potential gift tax consequences for such beneficiary-trustee, as any change to their beneficial interest in favor of the other beneficiaries could be deemed a gift by such beneficiary-trustee. Furthermore, Arizona also permits trustees who have distribution powers only over the income of the trust to exercise the decanting power. This is a particularly liberal view that is shared by only a handful of other states. There are significant questions as to whether the settlor of a First Trust who only authorized a trustee to make distributions of the trust’s income truly intended the trustee to have the power to modify the terms of the trust with respect to the principal over which they have no distribution authority. The Arizona approach ignores the underlying decanting rationale that a power to make an outright distribution of principal inherently includes a lesser power to make a distribution in further trust – similarly, the lack of a power to distribute principal arguably implies the settlor intended no such power to make distributions of principal in further trust (which is the effect of a modification of the First Trust by decanting).

Notably, all three frameworks permit trustees who are related or subordinate to a beneficiary to exercise their decanting powers, so long as the trust agreement gives such a person the requisite authority to make distributions. This can raise the same concerns as above with respect to beneficiary-trustees exercising the power to upset the settlor’s original structure for their trust. (However, a trustee’s fiduciary duties do provide some limit on the extent of their decanting power.)

Proposed Approach for Private Decanting Power:

Our approach is to include a broad private decanting power that can be exercised by trustees who (1) qualify as “Independent Trustees” and who (2) have a discretionary power to distribute principal that is not subject to an ascertainable standard. An Independent Trustee may be defined as any trustee who is (1) not a current beneficiary, presumptive remainder beneficiary, or settlor of the trust, or (2) related or subordinate (within the meaning of Section 672(c) of the Code) to a current beneficiary, presumptive remainder beneficiary or living settlor who appointed such trustee, with a carve-out for any initial or successor trustee who is related or subordinate to a settlor but was designated to serve in the original trust agreement (and does not succeed a trustee removed by the settlor). This middle-ground solution permits remainder beneficiaries whose interests are unlikely to vest to serve as trustee and exercise the decanting power, while also barring certain family members or employees from exercising the decanting power given their close connections to the beneficiaries. We also believe it important to tie any broad private decanting power to the power to make discretionary distributions of principal, in line with the general theory of decanting.

3. How can beneficial interests be changed by decanting?

In each of the statutory decanting frameworks, only certain beneficial interests can be (and others must be) included in the Second Trust. The guiding principle is that new beneficiaries cannot be added by decanting, and vested interests cannot be eliminated by decanting. However, the nature of the beneficial interests of current and remainder beneficiaries can be modified under each framework.

Under the UTDA, the current beneficiaries of the Second Trust must be one or more of the current beneficiaries of the First Trust – therefore, while some of the current beneficiaries can be eliminated, they cannot all be eliminated (e.g., to accelerate the interests of the remainder beneficiaries).[16] In addition, the Second Trust may only include as remainder beneficiaries one or more of the current or remainder beneficiaries of the First Trust (thus permitting a current beneficiary’s interest to be postponed rather than eliminated outright).[17] The UTDA further restricts the trustee from eliminating any vested interests, which are generally (1) noncontingent rights to mandatory distributions, (2) noncontingent rights to withdraw property of the trust, (3) a presently exercisable general power of appointment, or (4) a right to an ascertainable part of the trust property upon termination of the trust that is not subject to the trustee’s discretion or an event not certain to occur.[18]

Under New York’s decanting statute, the current beneficiaries of the Second Trust must be one or more of the current beneficiaries of the First Trust – as with the UTDA, some but not all of the current beneficiaries can have their interests eliminated by the decanting.[19] The remainder beneficiaries of the Second Trust must be one or more of the remainder beneficiaries of the First Trust.[20] Importantly, New York does not permit the remainder beneficiaries of the Second Trust to include current beneficiaries of the First Trust – the trustee can eliminate, but cannot postpone, a current beneficiary’s interest.[21] New York also prohibits the reduction, limitation or modification of certain vested interests, including (1) a current right to a mandatory distribution, annuity or unitrust interest, or (2) a current right to withdraw property of the trust.[22]

Arizona’s decanting statute does not specifically identify which beneficiaries may be included in the Second Trust, requiring only that the decanting be “in favor of the beneficiaries” of the First Trust and that it may not reduce any mandatory income, annuity or unitrust payments.[23]

Take-Aways for Structuring a Private Decanting Power:

The UTDA and New York’s decanting statute both prohibit the acceleration of remainder interests, while New York (likely unintentionally) prohibits the postponement of a current interest while permitting its elimination. Interestingly, neither the UTDA nor New York’s decanting statute prohibit the limiting of current beneficial interests in the Second Trust, thereby opening the door to back-door remaindermen accelerations by limiting current beneficial interests to a particular term before elimination in the Second Trust.[24]

Arizona, on the other hand, is silent on both the acceleration of remainder interests and the postponement and elimination of current beneficial interests (beyond certain narrow categories), except to require that the exercise of the decanting power be “in favor of the beneficiaries.”[25] “Beneficiaries” is defined to mean a person who either (1) has a present or future beneficial interest in a trust, vested or contingent, or (2) in a capacity other than that of a trustee, holds a power of appointment over trust property.[26] Given the lack of legislative history into the meaning of the “in favor of the beneficiaries” requirement and a lack of case precedent determining the scope of that provision, it appears that decanting is permitted under the statute as long as no new beneficiaries are added to the Second Trust.

As a final note, neither the UTDA nor New York’s decanting statute explicitly bars a beneficiary whose interest is limited to income (or limited to principal) from having their interest expanded to include distributions of both under the Second Trust. This is likely an oversight in the statutes, as a settlor’s intent to provide a current beneficiary with only income distributions demonstrates their intent not to invade principal with respect to such beneficiary, and the same should therefore be true of the Second Trust.

Proposed Approach for Private Decanting Power:

In a private decanting power, our approach is to (1) permit only current beneficiaries of the First Trust to be current beneficiaries of the Second Trust, (2) permit only current or future beneficiaries of the First Trust to be future beneficiaries of the Second Trust, and (3) require that a beneficiary whose interest is limited to income or principal to not be granted an interest as to the other in the Second Trust. With respect to vested interests, we propose that the private decanting power need only require that the Second Trust not eliminate, reduce, or limit any current and noncontingent right to withdraw income, a percentage of the value of the trust or a specified dollar amount (given the potential gift tax implications of such a change). Eliminating a mandatory income distribution right in favor of discretionary distributions can benefit the beneficiary (e.g., by causing the income to then become subject to the spendthrift protections of the trust, shielding the income from potential future creditors). And it may be beneficial to permit modification of a beneficiary’s presently exercisable general power of appointment within the confines of Section 2041(b)(2), e.g., by lapsing the power with respect to 5% of the aggregate trust property each year, to reduce the amount of trust property subject to the estate tax upon such beneficiary’s passing. Finally, with respect to the final restriction of the UTDA (i.e., that a mandatory distribution upon termination of the trust cannot be eliminated), such a mandatory distribution may be both tax-inefficient (e.g., if the trust is a GST-exempt trust and the termination condition triggers prior to the applicable rule against perpetuities period) and could expose those assets to such beneficiary’s creditors. Instead, the Second Trust could provide for such assets to continue to be held in a new trust for the benefit of such ultimate beneficiary, providing both better economic and creditor-protection outcomes.

4. How can powers of appointment be created, modified, or eliminated by decanting?

Under the UTDA, authorized fiduciaries have significant latitude to create, modify, and eliminate powers of appointment by decanting. The UTDA permits the Second Trust to (1) retain a power of appointment granted in the First Trust, (2) omit a power of appointment (other than a presently exercisable general power of appointment) granted in the First Trust, (3) grant a new power of appointment in the Second Trust to a current beneficiary of the First Trust to whom the authorized fiduciary could distribute all the principal of the trust, and (4) grant a power of appointment in the Second Trust to a remainder beneficiary of the First Trust if the exercise of the power can only take effect once such beneficiary becomes (or would have become if living) a current beneficiary of the First Trust.[27] When granting a power of appointment, the class of permissible objects of such power may be broader than or different from the beneficiaries of the First Trust.[28] Thus, while the authorized fiduciary cannot add a new beneficiary directly to the Second Trust, they can create a pathway for trust property to be distributed to persons not originally included in the First Trust.

New York’s decanting statute is significantly more restrictive with respect to granting powers of appointment. The statute allows an authorized trustee to grant a current beneficiary who can receive principal outright under the First Trust a power of appointment over the property of the Second Trust – however, the power must either (1) exclude as permissible appointees only one or more of the beneficiary, the settlor, the settlor’s spouse, and any of their creditors or estates, or (2) be the same as a power granted to that beneficiary under the First Trust, with no change in the permissible appointees or in the fashion in which the power can be exercised.[29] This significant limitation on powers of appointment includible in the Second Trust can frustrate a trustee’s attempts to modify the trust in conformity with the settlor’s intent (e.g., restricting the objects of a power to the settlor’s descendants), thereby causing the trustee to seek out other jurisdictions in which to decant. Notably, with respect to omitting powers of appointment, the New York statute permits omitting a presently exercisable general power of appointment, which the UTDA does not.[30]

Arizona’s decanting statute is silent on powers of appointment. However, given that the statute is structured to authorize a broad decanting power with some limited guardrails, the trustee implicitly has the power to grant or omit powers of appointment by the exercise of the decanting power.

Take-Aways for Structuring a Private Decanting Power:

Generally, the UTDA is more flexible than the New York statute with respect to granting new powers of appointment in the Second Trust, as it permits such new powers to have a limited class of permissible appointees (e.g., one common configuration is to limit the power to the settlor’s descendants). The New York statute is oddly stringent and poses potentially significant hurdles for trustees who want to abide by the settlor’s original intent of not allowing the trust property to pass outside the family.

For example, consider the situation in which Jane creates a trust for her child, Amy, that does not include any power of appointment and that requires the trust to divide evenly among Amy’s children upon Amy’s death. If one of Amy’s children is highly successful and another develops serious health complications, then an equal division of wealth may not be the best plan. In a state that implements the UTDA, the trustee could decant to a new trust that grants Amy a power of appointment among only her descendants, allowing her to modify the pro rata distribution of the trust to her children to account for these changed circumstances. In New York, the trustee would need to grant a broad limited power of appointment wherein Amy could appoint the trust property to anyone, including her surviving spouse – an outcome that Jane may not have intended.

Proposed Approach for Private Decanting Power:

In a private decanting power, we propose following the UTDA model, with a minor tweak: with respect to presumptive remainder beneficiaries, only permit the Second Trust to grant a power of appointment to those to whom the trustee will be authorized to distribute principal under the First Trust upon their becoming current beneficiaries. Under the UTDA, a presumptive remainder beneficiary need only be a beneficiary as to income to qualify to be granted a power of appointment – this is likely an oversight (i.e., as it may permit a presumptive remainder income beneficiary more control than a settlor otherwise intended). This approach resolves the issue in the UTDA statute while addressing the significant limitations in the New York statute (i.e., the inability to grant a customized power of appointment or grant a future beneficiary a power of appointment that becomes effective upon such beneficiary becoming a current beneficiary).

5. What changes are permitted with respect to fiduciaries?

The decanting statutes generally restrict changes that benefit the trustee, given other modification options available (e.g., nonjudicial settlement agreements) that are better suited to modify the fiduciary relationship between trustees and beneficiaries. Limitations on such changes include prohibitions on limiting fiduciary liability, increasing fiduciary compensation, and changes to who can remove and appoint the fiduciaries.

The UTDA provides that the Second Trust cannot relieve an authorized fiduciary from liability for breach of trust to a greater extent than the First Trust, keeping fiduciaries from unilaterally exculpating themselves from their duties.[31] The Second Trust also cannot indemnify the authorized trustee for any claim that would not have been payable from the First Trust.[32] However, the Second Trust can divide and reallocate fiduciary duties (e.g., to modify the trust structure to a directed trust), provided that the Second Trust cannot reduce fiduciary liability in the aggregate across the trust’s various fiduciary roles.[33]Furthermore, with respect to compensation, the UTDA prohibits the Second Trust from increasing the authorized fiduciary’s compensation unless all of the qualified beneficiaries of the Second Trust consent to the increase or the increase is approved by a court; there is, however, a safe harbor that states that increases that are incidental to other changes made by the decanting will not be deemed increases in the fiduciary’s compensation for this purpose.[34] Importantly, the compensation limitation only applies to increases in the authorized fiduciary’s compensation (and not fiduciary compensation generally). Finally, with respect to removing a fiduciary, the UTDA prohibits the authorized fiduciary from modifying a provision that permits removing or replacing the authorized fiduciary unless (1) the person holding the power consents, and the change applies only to them, (2) the person holding the power and all the qualified beneficiaries consent and a substantially similar power is granted to another person in the Second Trust or (3) the court approves the modification and a substantially similar power is granted to another person.[35] Given the reticence to obtain beneficiary approval for any decanting, as discussed below, this provision can force those seeking to use a UTDA-based statutory decanting power in which any modification is made to the removal power to go to court to obtain approval for the entire modification (a usually burdensome and costly process).

New York’s decanting statute uses a slightly different model, requiring that an authorized trustee may not decrease or indemnify against a trustee’s liability or exonerate a trustee from liability for failure to exercise reasonable care, diligence and prudence,[36] which is a requirement of all New York trusts as a matter of public policy.[37] With respect to compensation, the New York statute provides that, absent court approval, an authorized trustee may not change the provisions regarding the determination of compensation of any trustee.[38] Unlike the UTDA, the compensation limitation applies to all fiduciary roles (not just the authorized fiduciary) and prohibits any changes to provisions that determine the compensation of the fiduciaries. New York also prohibits the payment of a commission in connection with a decanting.[39]Finally, New York is somewhat more flexible with respect to modifications of the removal provision of an authorized trustee than the UTDA. The New York decanting statute prohibits eliminating (but not necessarily modifying) a provision granting a person the right to remove or replace the authorized trustee, unless a court otherwise approves the change.[40]

Arizona’s decanting statute is silent on all these fiduciary points, with no explicit limitations on changes to fiduciary liability, fiduciary compensation, or fiduciary removal powers. Thus, such changes are likely limited only by a trustee’s fiduciary duties when considering whether such modifications are truly serving the beneficiaries or are instead self-interested modifications serving the trustee.

Take-Aways for Structuring a Private Decanting Power:

Unlike the New York decanting statute, the UTDA helpfully specifies that dividing and reallocating fiduciary powers and liabilities is an acceptable function of decanting, so long as it does not reduce fiduciary liability in the aggregate. Given the growth of directed trust statutes and the growing sophistication of corporate fiduciaries in playing specific roles in the trust administration ecosystem, modernizing trust agreements to provide for such division of fiduciary roles and responsibilities is an important and needed function of decanting.

With respect to compensation, both the UTDA and New York statutes have significant issues. The UTDA applies its restrictions only to an authorized fiduciary, permitting a fiduciary to significantly modify other compensation arrangements. While the New York statute applies its compensation limitation to all fiduciaries, it does not include the UTDA’s safe harbor with respect to changes that have an incidental impact on the determination of a fiduciary’s compensation. Thus, the New York statute may be overly restrictive – for example, a decanting that creates an “investment trustee” role and changes the trustee’s compensation based on whether they hold both or only one of the distributive and investment fiduciary functions would be prohibited without the trustee seeking court approval for the modification.

Importantly, the requirement in the UTDA that beneficiaries consent to modifications of the fiduciary removal provisions can be particularly problematic, given that in the current environment, it is critical to avoid beneficiary consent for a decanting to avoid any argument of the applicability of CCA 202352018, as discussed below. And the solution is not necessarily New York’s approach, which simply prohibits the elimination of such removal powers without expressly prohibiting the modification of such powers. Rather, we agree with the underlying goal of the UTDA that decanting is an inappropriate tool by which to modify the fiduciary removal provisions. Instead, it is critical that the removal provisions themselves build in sufficient flexibility for certain people (e.g., the settlor and their spouse, the beneficiaries, and other trusted individuals) to modify such removal provisions. Having such a built-in mechanism to modify appointment and removal powers removes the need to make such modifications via a decanting.

Finally, all is not necessarily well with Arizona’s approach – its silence is not always golden. For fiduciaries who are considering significant changes to how they are indemnified, compensated, or removed from power, seeking court approval of the decanting (a permissible but not mandatory step in Arizona) may be the most prudent course. The lack of explicit authorization for trustees to make such modifications mandates that fiduciaries exercise significant caution in going it alone when modifying how trust agreements apply to themselves.

Proposed Approach for Private Decanting Power:

With respect to trustee liability, we propose that a private decanting power limit the authorized fiduciary from decreasing, exonerating, or indemnifying any current or successor fiduciary from liability to a greater extent (in the aggregate) than provided in the First Trust. This ensures that a decanting complies with a fiduciary’s duties to act in the best interests of the beneficiaries (and not in service of their own interests). Changes to how trustees are indemnified or exonerated from liability should instead be made through other avenues, such as nonjudicial settlement agreements.

With respect to trustee compensation, we propose that a private decanting power should prohibit the Second Trust from modifying any provisions that determine the compensation of any current or successor fiduciary, with a safe harbor for changes to compensation that are incidental to other changes made by the exercise of the decanting power. We also propose that the private decanting power prohibit any fiduciary from receiving a commission in connection with the exercise of the decanting power. For compensation changes, a better approach is to structure the fiduciary compensation provision itself such that the First Trust explicitly provides that beneficiaries and fiduciaries may negotiate between themselves how fiduciaries should be compensated, with default provisions (e.g., reliance on state law rules) in the absence of such an agreement. This is a better method for making compensation changes than decanting, given a fiduciary’s duties to act in the interests of the beneficiaries when exercising the decanting power.

Finally, with respect to the removal provisions for fiduciaries, we propose that a private decanting power should require that the decanting not modify or omit the provisions governing the removal and replacement of any fiduciaries. As discussed above, the better approach is to design a modification construct in the appointment and removal provisions of the First Trust that permits the modification of such provisions without resorting to decanting.

6. Who oversees the exercise of the decanting power (i.e., to whom must notice be provided, and should consent be required)?

The ability to decant is a powerful one, enabling a trustee to make long-lasting changes to the terms of the trust. However, trustees must act in accordance with their fiduciary duties and states have taken various approaches to requiring notice of (and thus ostensibly a check on) the exercise of the decanting power.

The UTDA requires that the authorized fiduciary provide notice sixty days prior to the effective date of the exercise of the decanting power.[41] The notice must be given to (1) the settlor of the First Trust, (2) each current beneficiary and presumptive remainder beneficiary of the First Trust, (3) each holder of a presently exercisable power of appointment over the First Trust, (4) each person who has a right to remove and replace the authorized fiduciary, (5) each other fiduciary of the First Trust, (6) each fiduciary of the Second Trust, and (7) if there is a charitable beneficiary, then the Attorney General of the state whose law governs the trust.[42] The notice itself must specify how the authorized fiduciary will modify the trust by decanting, the proposed effective date, and must provide the trust agreement for both the First Trust and the Second Trust.[43] While the UTDA provides that the exercise of the decanting power does not require the consent of any person (nor does it require court approval),[44] it does permit each of the notice parties to waive the notice period, which can accelerate the timing of the decanting.[45] It also allows any notice party to object to the decanting by asking a court to rule on whether the decanting complies with the UTDA or is an abuse of the authorized fiduciary’s discretion or a breach of their fiduciary duty.[46]

New York’s decanting statute has similar, but more limited, requirements than the UTDA. Where the UTDA requires sixty days’ notice, New York requires thirty days.[47] New York further limits the notice parties to (1) the settlor, (2) persons who can remove or replace the authorized trustee, and (3) the current and presumptive remainder beneficiaries of the trust.[48] Like the UTDA, New York requires that copies of both the First Trust and the Second Trust be provided to the notice parties; however, the New York decanting statute also requires that the authorized trustee specify in the notice the property to be decanted and, if less than all the property, the percentage of the value of principal of the First Trust that is to be decanted.[49] While no consent from any notice party is required, beneficiaries may object to the decanting. However, the statute provides that failure to object does not constitute consent.[50]

Arizona’s decanting statute does not require any notice of the exercise of its decanting power. However, if court approval of the decanting is sought by the trustees, then notice will generally be made to all the beneficiaries of the trust.[51] Given the few guardrails in the decanting statute, some trustees may prefer to obtain court approval, thus requiring notice.

Take-Aways for Structuring a Private Decanting Power:

Generally, the UTDA and New York’s decanting statute provide a measure of oversight and protection against a trustee exercising the decanting power in ways that could be contrary to the interests of the beneficiaries or the settlor’s purposes and intent in creating the First Trust (namely by permitting objections to be filed prior to the effective date of the exercise). The concern, however, is that consent by a settlor and/or beneficiaries to a decanting could have adverse tax consequences, a concern that has been heightened by CCA 202352018, issued at the end of 2023.[52] The CCA concluded that the beneficiaries’ consent to a modification that added a power to reimburse the settlor for taxes paid with respect to the trust’s income was a taxable gift by the beneficiaries to the settlor. Thus, if a decanting were to modify the distributive provisions of a trust such that beneficial interests shifted (e.g., by eliminating a beneficiary or removing mandatory distributions at certain ages), consent to such decanting could result in adverse tax consequences for a consenting settlor and/or consenting beneficiaries. While the UTDA and New York’s decanting statute each provide that no consent by any party is required, and New York further specifies that a failure to object is not consent, the risk remains (the logic of CCA 202352018 could arguably be extended in the future to treat non-objections as “consent”). While non-objections are arguably different from affirmative consents, there is no guarantee that the IRS will not take the opposite view in future guidance or upon audit.

Furthermore, both the UTDA and New York require notice to the beneficiaries of a decanting, and Arizona requires such notice when court approval is sought for the decanting. This may not be desirable in situations where the beneficiaries are not yet aware of the existence of the trust.

Proposed Approach for Private Decanting Power:

How, then, does one thread the needle between providing oversight of the trustee’s exercise of the private decanting power while not requiring notice to any party whose non-objection to the modification could result in adverse tax consequences? We propose a two-part solution:

First, insert a third party between the trustee exercising the decanting power and the settlor and beneficiaries, a party we call the “Decanting Monitor,” to receive notice of the decanting. The Decanting Monitor can be named in the trust agreement or appointed later by the person(s) with the power to appoint trustees.

Second, provide that the decanting only takes effect if the trustee continues to serve through the termination of the notice period. If the trustee is removed by the settlor or beneficiaries during the notice period, the decanting does not take effect.

The notice period should be at least thirty days after notice is provided to the Decanting Monitor (as a practical matter, notice should also be provided to the fiduciaries of the First Trust and the Second Trust, so they are on notice of when their fiduciary duties commence or cease). The notice must identify the property to be distributed by the First Trust to the Second Trust, and it must include the trust agreements for both the First Trust and the Second Trust (this ensures the full impact of the decanting is known). The Decanting Monitor’s sole role is to receive such notice, and their sole power, exercisable in a non-fiduciary capacity, is to waive the thirty-day notice period to cause the decanting to become effective prior to the proposed effective date. Behind the scenes, if the Decanting Monitor is concerned about the scope of the proposed decanting, they can alert the person(s) with the power to remove the trustee, and such person(s) can then remove the trustee during the notice period, causing the decanting to fail to take effect. If the trustee is still serving (i.e., has not been removed) after the expiration of the notice period, the decanting takes effect.

In the context of avoiding consent or non-objections by the settlor and beneficiaries, this solution creates two key buffers: the settlor and beneficiaries are never in a position to object to the decanting, and the action that ceases the decanting (namely, the removal of the trustee) has substantive effect beyond the decanting. While this additional distance comes at the risk that the Decanting Monitor does not inform the person(s) who can remove the trustee of the decanting, given the Decanting Monitor is appointed specifically to oversee the decanting, this solution shields against permissible, but concerning, exercises of the decanting power.

Finally, this structure helps to avoid the issue of notifying beneficiaries who are not yet aware of the existence of the trust but who would be notified of a decanting. By tying the notice requirement to a Decanting Monitor (who is typically appointed by a settlor, current beneficiary or third party), the trustee can decant without informing unaware beneficiaries that the trust exists.

7. What limitations and guardrails should be included to prevent problematic decanting?

All three statutes that we discuss include certain limitations on decanting, primarily to prevent the mere existence of the power to decant from causing the First Trust to cease to qualify for certain specific tax benefits.

In the UTDA, there are several limitations on the power to decant that are intended to maintain the ability of the First Trust to qualify for specific tax benefits. These include requirements that the Second Trust not omit provisions that would prevent a transfer to the First Trust from qualifying (1) for the gift and estate tax marital deduction, (2) for a charitable deduction for income, gift or estate tax purposes, (3) under Section 2503(b) (i.e., as an annual exclusion gift), (4) to hold S corporation stock under Section 1361, (5) for a zero inclusion ratio under Section 2642(c) (i.e., with respect to GST annual exclusion gifts), (6) for lower minimum distributions under Section 401(a)(9) (i.e., with respect to qualified benefits property), (7) as a grantor trust by application of Section 672(f)(2)(A) (i.e., with respect to certain foreign trusts), or (8) any federal or state tax deduction, exemption, exclusion or other benefit of the First Trust, other than those arising from being a grantor trust, if the First Trust expressly indicates an intent to qualify for such benefit (or is clearly designed to qualify for such benefit) and the First Trust otherwise would have qualified for such benefit absent the ability to decant.[53] Importantly, the UTDA does allow for a decanting to change the grantor trust status (i.e., from nongrantor to grantor, or grantor to nongrantor). Furthermore, with respect to the rule against perpetuities, the UTDA requires that any property of the Second Trust received from the First Trust remains subject to the First Trust’s rules governing maximum perpetuity, accumulation, or the suspension of the power of alienation.[54]

New York’s decanting statute also provides several limitations intended to maintain the First Trust’s qualifications with respect to certain tax provisions, though its list is less exhaustive than the UTDA. Of those limitations listed in the UTDA, New York only includes restrictions with respect to (1) the marital deduction, (2) the charitable deduction, (3) qualification under Section 2503(b), (4) qualification under Section 2642(c), and (5) a general catch-all provision for any specific tax benefit for which a contribution to the First Trust originally qualified.[55] With respect to the rule against perpetuities, the New York decanting statute requires that any exercise of the decanting power not violate the New York rule against perpetuities period, and any exercise in violation of such period causes the entire exercise to be voided.[56]

Arizona’s decanting statute does not include any of the specific limitations found in the UTDA or in New York’s decanting statute. Instead, Arizona’s decanting statute requires that the decanting not “adversely affect the tax treatment of the trust, the trustee, the settlor or the beneficiaries.”[57] Unfortunately, the lack of clarity as to when decanting may cause adverse tax treatment can hinder the trustee’s ability to decant in ways envisioned by the UTDA and New York, including a change in the grantor trust status of the First Trust (which, by its nature, either adversely affects the settlor, the trust or the beneficiaries, depending on who currently pays the trust’s taxes). With respect to the rule against perpetuities, Arizona requires that the decanting not violate Arizona’s rule against perpetuities.[58]

Take-Aways for Structuring a Private Decanting Power:

The goal of these provisions in the UTDA and New York’s decanting statute is to safeguard against an argument by the IRS that a statutory decanting power that would otherwise permit the trustee to eliminate requirements for the qualification for certain tax benefits (e.g., the requirement that a marital trust distribute all its income annually to the spouse to qualify for the marital deduction) would, on its face, cause such trust to fail to qualify for those tax benefits. The concern is not without merit, and a private decanting power should similarly be crafted to safeguard against the possibility that a broad power to modify the trust could cause the trust, in certain circumstances, to fail to qualify for intended tax benefits.

For tax and conflicts-of-law reasons, the rule against perpetuities that applies to the property of the First Trust should continue to apply to such property when held by the Second Trust, even when other property held by the Second Trust may benefit from a longer perpetuities period (or even be permitted to be held in trust in perpetuity).

Proposed Approach for Private Decanting Power:

Generally, the approach of the UTDA is useful in safeguarding the First Trust from an assertion by the IRS that the availability of a broad decanting power voids tax benefits of the First Trust. Thus, we propose that a private decanting power should include the UTDA limitations on (1) the marital deduction, (2) the charitable deduction, (3) qualification under Section 2503(b), (4) qualification under Section 2642(c), (5) qualification as a permitted shareholder of S corporation stock, and (6) trusts holding qualified benefits property. We also propose including instructions, similar to the New York decanting statute,[59]that the trustee should consider the federal and state income tax and transfer tax consequences of exercising the private decanting power.

With respect to the rule against perpetuities, we propose requiring that the private decanting power not modify the application of such rule with respect to the property of the First Trust, but permit the Second Trust to benefit from a longer rule against perpetuities period (or last in perpetuity) with respect to property that does not derive from the First Trust.

8. Should a limited decanting power be allowed for distribution powers limited by ascertainable standards?

The UTDA, New York’s decanting statute and Arizona’s decanting statute all include provisions where trustees with limited discretionary authority (i.e., to make distributions limited by an ascertainable standard, such as health, education, maintenance, and support) are able to decant, albeit in a more limited fashion.

The UTDA allows for trustees with limited distribution powers to exercise a limited decanting power.[60] Under this limited decanting power, the Second Trust must grant the beneficiaries of the First Trust beneficial interests that are substantially similar to the beneficial interests such beneficiaries held in the First Trust.[61] Thus, current beneficiaries may not be eliminated or have their interests postponed, and remainder beneficiaries similarly may not be eliminated by the decanting. Furthermore, the requirement to maintain substantially similar beneficial interests means that a limited decanting power cannot eliminate mandatory distributions to a beneficiary at certain ages or modify the trustee’s distribution standard.[62] This limited decanting power is also restricted to the part of the principal over which the fiduciary may exercise its limited distribution power[63] – therefore, if an authorized fiduciary may only make distributions to a beneficiary from a portion of the trust principal, the remaining principal may not be decanted under the limited decanting power.

New York’s decanting statute also provides for a limited decanting power for trustees with limited distribution powers.[64] Unlike the UTDA, New York permits the elimination of early termination triggers in a limited decanting.[65] Like the UTDA, New York requires that the Second Trust maintain the same current beneficiaries and remainder beneficiaries and the same distribution standard; however, New York’s decanting statute also permits the expansion of a limited distribution power to a fully discretionary distribution power at the point the First Trust would have terminated with respect to the property governed by the limited distribution power (e.g., if the decanting eliminates the requirement to distribute the trust property to the beneficiary at a set age).[66] New York also requires that any beneficiary who was granted a power of appointment under the First Trust maintain that power of appointment in the Second Trust; however, the statute does not expressly prohibit omitting in the Second Trust powers of appointment granted to non-beneficiaries (e.g., a power of appointment granted to a settlor’s spouse over a trust for the benefit of their descendants).[67]

Arizona’s decanting statute provides only a small constraint on the exercise of a decanting power under a limited distribution standard: such a limited distribution standard must be maintained in the Second Trust, but only if the trustee exercising the decanting power is a beneficiary to whom distributions are made by such limited distribution power.[68] Any other limits to the distribution powers of the trustees that can be modified under a broad decanting power can arguably be modified under the Arizona rules for limited decanting.

Take-Aways for Structuring a Private Decanting Power:

All three state statutes recognize that decanting can still be useful and proper in situations in which the trustees lack full discretionary authority but do enjoy a limited distribution power. New York, unlike the UTDA, permits certain changes in beneficial interests, including the extension of the trust term by eliminating outright distributions of trust principal at certain ages. New York’s approach thus allows for a greater degree of modification compared to the UTDA, which can be to the benefit of the beneficiaries (e.g., by extending the time under which the property for their benefit is protected from the beneficiaries’ creditors).

Arizona’s approach is arguably too permissive, as it allows for a trustee who is not a beneficiary to eliminate the restrictions on their distribution powers even if no current distribution of trust property could be made on account of those restrictions. This may be contrary to the original intent of the settlor who established such limited distribution powers in the First Trust.

Proposed Approach for Private Decanting Power:

While state statutes may provide for limited decanting powers, in a private decanting power, we propose not including a limited decanting power when trustees lack fully discretionary distribution powers over the trust property. The core underlying theory of decanting is that a trustee who could otherwise make distributions outright to the beneficiaries should be able to instead distribute such property into a new trust for the benefit of one or more such beneficiaries (which importantly preserves creditor protection and potential transfer tax savings, among other benefits). If the First Trust only grants the trustee the authority to make distributions for health, education, maintenance, and support (“HEMS”), it is likely that the settlor’s intent was that when property is distributed, it would be used for certain specific needs of the beneficiary. Using a HEMS-limited distribution power to make further distributions in trust ostensibly violates this principle: if a beneficiary has a college tuition bill for $20,000, is making a distribution of $20,000 in further trust for the beneficiary (where such $20,000 is not then used for tuition) actually a distribution authorized under a HEMS standard?

If the settlor wanted to give the trustee a broad power to modify or modernize the trust, they could have done so through a broad power to amend the trust that does not rely on their distribution powers. We do not believe that limited distribution powers are the right vehicle by which to permit the broad classes of modifications available in a decanting, and thus we propose omitting such a limited private decanting power. Nonetheless, a trustee with a limited distribution power may instead resort to decanting under a state statute, subject to the limitations therein.

Conclusion

Decanting is a critical tool for trustees to address inefficiencies in the trust agreement (e.g., early termination dates), take advantage of modern trust law (e.g., directed trust statutes) and resolve family disputes (e.g., by dividing a trust into separate trusts for the beneficiaries). However, state statutes can be inflexible, and many require notice to the settlor and beneficiaries, which can be problematic. Thus, implementing a private decanting power in the trust agreement gives trustees a flexible, settlor-aligned method to update or modify the trust.

Below is a checklist for drafting a private decanting power:

1. Express carve-outs. Expressly limit the modifiability of key provisions a settlor does not intend a decanting to be able to change, allowing trustees to rely entirely on the express provisions of the trust agreement in determining the scope of their decanting power.
2. Who may decant. Restrict the power to an Independent Trustee with a fully discretionary distribution power over principal; generally, exclude current beneficiaries, presumptive remainder beneficiaries and related/subordinate parties appointed by the settlor or such beneficiaries from exercising the power.
3. Beneficial interests. Require that no new beneficiaries be added, and that no beneficial interests are expanded (e.g., if limited to an income interest, do not expand to principal); allow postponement of current beneficiaries but not acceleration of remainder beneficiaries; and preserve noncontingent withdrawal rights.
4. Powers of appointment. Permit new powers of appointment to be granted to any current beneficiary (and any future beneficiary at the time they would become a current beneficiary) who is eligible to receive principal; allow the objects to be narrowly or broadly defined; and allow omission from the Second Trust of powers of appointment in the First Trust.
5. Fiduciary provisions. Prohibit decanting from decreasing fiduciary liability, modifying fiduciary compensation, or altering removal mechanics for fiduciaries.
6. Oversight without consent risk. Require notice to a Decanting Monitor (appointed by those who appoint trustees) at least thirty days in advance of the effective date of the decanting; require the trustee to still be serving at the end of the notice period for the decanting to take effect.
7. Tax & RAP guardrails. Limit the decanting power so as not to cause the loss of any tax benefits on account of the existence of the power in the First Trust; keep First Trust property under such trust’s RAP while allowing the Second Trust to use a longer period for other property.
8. No limited decanting power. Avoid granting a limited decanting power to trustees with only limited distribution powers.

Tony Ray Meyer-Mangione is an associate in the Trusts and Estates Practice Group of Kirkland & Ellis LLP. Tony’s practice focuses on wealth transfer and tax planning for individuals and families of significant wealth, including the structuring of family offices, business succession planning, establishing, and administering private foundations and other charitable organizations, modifying and decanting trusts, and the administration of high-net-worth trusts and estates. His clients include principals of private equity funds and venture capital firms, business leaders, owners of closely held businesses, high-net-worth families, and public figures. Tony is a graduate of Harvard Law School and Harvard College, and he regularly writes and speaks on trusts and estates topics.

Beatrice Caplan is a partner in the Trusts and Estates Practice Group of Kirkland & Ellis LLP. Beatrice’s practice focuses on complex gift and estate planning matters. She has extensive experience in planning with private equity and hedge fund interests, including designing transfers for unique fund structures and advising on the estate and gift tax consequences of fund restructuring transactions such as third-party stake sales and continuation vehicles. Drawing on her background in tax practice, she has significant experience in pre-IPO planning for founders, business succession planning, and structuring of family offices. She also has considerable experience in the international arena, both inbound and outbound planning. This has involved the modification and decanting of existing trusts in coordination with local counsel to achieve the optimum tax results in both the U.S. and the foreign jurisdiction. Beatrice has been recognized by Lawdragon as one of its “500 Leading Global Tax Lawyers.”

[1]     Some states also permit decanting when the distribution power is with respect to income (e.g., Arizona), and the UTDA also permits decanting without a principal distribution power in the case of a special-needs trust.

[2]     UTDA Section 4(a).

[3]     UTDA Section 2(28)(A).

[4]     UTDA Comment to Section 4.

[5]     Id.

[6]     Id.

[7]     NY EPTL 10-6.6(h).

[8]     Id.

[9]     ARS 14-10819(A)(5) and (A).

[10]   UTDA Section 2(3).

[11]   UTDA Section 11.

[12]   NY EPTL 10-6.6(s)(2).

[13]   NY EPTL 10-6.6(b).

[14]   ARS 14-10819(A).

[15]   NY EPTL 10-6.6(s)(2).

[16]   UTDA Section 11(b).

[17]   UTDA Section 11(c).

[18]   UTDA Section 11(a)(4).

[19]   NY EPTL 10-6.6(b).

[20]   Id.

[21]   Id.

[22]   NY EPTL 10-6.6(n)(1).

[23]   ARS 14-10819(A)(1)-(3).

[24]   See, e.g., UTDA Comment to Section 12, which states that a decanting that changes the mandatory distribution age would violate the requirement of a limited decanting that beneficial interests must be substantially similar, a requirement not included in the expanded decanting power.

[25]   ARS 14-10819(A)(3).

[26]   ARS 14-10103(2).

[27]   UTDA Section 11(d).

[28]   UTDA Section 11(e).

[29]   NY EPTL 10-6.6(b)(1)-(3).

[30]   UTDA Section 11(a)(4).

[31]   UTDA Section 17(a).

[32]   UTDA Section 17(b).

[33]   UTDA Section 17(c)-(d).

[34]   UTDA Section 16(a)-(c).

[35]   UTDA Section 18(1)-(3).

[36]   NY EPTL 10-6.6(n)(2).

[37]   NY EPTL 11-1.7(a)(1).

[38]   NY EPTL 10-6.6(q)(1).

[39]   NY EPTL 10-6.6(q)(2).

[40]   NY EPTL 10-6.6(n)(3).

[41]   UTDA Section 7(c).

[42]   Id.

[43]   UTDA Section 7(e).

[44]   UTDA Section 7(b).

[45]   UTDA Section 7(f).

[46]   UTDA Section 7(g); UTDA Section 9(a).

[47]   NY EPTL 10-6.6(j).

[48]   NY EPTL 10-6.6(j)(2).

[49]   NY EPTL 10-6.6(j)(3).

[50]   NY EPTL 10-6.6(j)(4).

[51]   ARS 14-1401.

[52]   Chief Counsel Advice 202352018 (released Dec. 29, 2023).

[53]   UTDA Section 19(b)(1)-(8).

[54]   UTDA Section 20(b).

[55]   NY EPTL 10-6.6(n)(5).

[56]   NY EPTL 10-6.6(p).

[57]   ARS 14-10819(5).

[58]   ARS 14-10819(6).

[59]   NY EPTL 10-6.6(o).

[60]   UTDA Section 12.

[61]   UTDA Section 12(c).

[62]   See, e.g., UTDA Comment to Section 12.

[63]   UTDA Section 12(e).

[64]   NY EPTL 10-6.6(c).

[65]   NY EPTL 10-6.6(c)(2).

[66]   Id.

[67]   NY EPTL 10-6.6(c)(4).

[68]   ARS 14-10819(A)(4).