California’s New Decanting Law | Fixing Broken Trusts

California’s New Decanting Law | Fixing Broken Trusts

• October 30, 2018 - Estate Planning, Trust Litigation,

You’ve probably heard that “It’s not what you say, it’s what people hear.” Public opinion guru Dr. Frank Luntz is making a career from this truth – he explains that he is “testing language and find(ing) words that will help his clients” explain their products or public issues.

So, we now have a new word when talking about California trust law, issues, modifications and transfers. It’s a word that we might say, but not necessarily hear or understand. The word is “decanting.”

The word’s general usage is associated with wine – pouring wine from one bottle into a carafe to remove sediment and allow it to breathe. California now gives new meaning to the word in its recently enacted Uniform Trust Decanting Act.

The Legislative Counsel explains that the Act allows “a fiduciary of an irrevocable trust …(to) distribute the property of a first trust to one or more 2nd trusts or modify the terms of the first trust without the consent of the beneficiaries or approval of the court, subject to certain exceptions.” In essence, California has just become more trust-friendly.

Now, there’s a lot of legalese in the new statutory framework. We’re fortunate that a number of other states enacted decanting laws before California and there are more down-to-earth explanations as to how they apply.

A Forbes article written long before California’s statute well states the generic advantages of decanting:

“Although it’s certainly not a ‘blank check,’ there are a number of problems that decanting can “fix,” some of which also can be resolved utilizing the previously mentioned techniques:

Update or modify trust provisions.

Improve trust administration or management.

Correct drafting errors.

Address changed circumstances.

Remove unworkable restrictions.

Change provisions relating to trust powers and trustee succession.

Achieve tax savings.

Change trust situs.

Combine or divide trusts.

GST (Generation-Skipping Tax) Planning.

The new California law on decanting will not generally involve the courts. These user-friendly provisions should provide time and cost savings in fixing broken trusts. We believe that California’s new decanting framework will also be helpful in resolving estate wrongdoing, violations of trust beneficiary rights, and elder financial abuse.

At Hackard Law we take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made accountable for their actions. We regularly litigate in California’s major urban areas, including Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento.

If you would like to speak with us about a trust matter that is troubling you or your family, call us at 916 313-3030. We’ll be happy to hear your story.