Florida Estate Planning Lawyer Blog
Seven states have enacted statutes that permit a trustee with discretion to distribute principal of a trust to exercise the discretion by transferring principal to a new trust, which may have terms different than the original trust. They are Alaska, Delaware, Florida, New Hampshire, New York, South Dakota and Tennessee.
Main issues for using Decanting statutes:
1. The discretion the trustee of the first trust must have to use the
statute;
2. The permissible beneficiaries of the second trust;
3. Interests in the first trust that are protected from change;
4. The ability of a beneficiary-trustee to exercise a decanting power;
5. Whether the statute permits transfer to a trust in another state
and/or applies to trusts that move into the state; and
6. The effect of decanting under the rule against perpetuities.
Florida statute for decanting Fla. Stat. §736.04117 (2007)
§736.04117. Trustee’s power to invade principal in trust
(1)(a) Unless the trust instrument expressly provides otherwise, a trustee who
has absolute power under the terms of a trust to invade the principal of the trust,
referred to in this section as the “first trust,” to make distributions to or for the benefit
of one or more persons may instead exercise the power by appointing all or part of the
principal of the trust subject to the power in favor of a trustee of another trust, referred
to in this section as the “second trust,” for the current benefit of one or more of such
persons under the same trust instrument or under a different trust instrument; provided:1. The beneficiaries of the second trust may include only
beneficiaries of the first trust;
2. The second trust may not reduce any fixed income, annuity, or unitrust interest in the assets of the first trust; and
3. If any contribution to the first trust qualified for a marital or charitable deduction for federal income, gift, or estate tax purposes under the Internal Revenue Code of 1986, as amended, the second trust shall not contain any provision which, if included in the first trust, would have prevented the first trust from qualifying for such a deduction or would
have reduced the amount of such deduction.1 (b) For purposes of this subsection, an absolute power to invade principal shall include a power to invade principal that is not limited to specific or ascertainable purposes, such as health, education, maintenance, and support, whether or not the term “absolute” is used. A power to invade principal for purposes such as best interests, welfare, comfort, or happiness shall constitute an absolute power not limited to specific or ascertainable purposes.
(2) The exercise of a power to invade principal under subsection (1) shall be by an instrument in writing, signed and acknowledged by the trustee, and filed with the records of the first trust.
(3) The exercise of a power to invade principal under subsection (1) shall be considered the exercise of a power of appointment, other than a power to appoint to the trustee, the trustee’s creditors, the trustee’s estate, or the creditors of the trustee’s estate, and shall be subject to the provisions of s. 689.225 covering the time at which the permissible period of the rule against perpetuities begins and the law that determines the permissible period of the rule against perpetuities of the first trust.
(4) The trustee shall notify all qualified beneficiaries of the first trust, in writing, at least 60 days prior to the effective date of the trustee’s exercise of the trustee’s power to invade principal pursuant to subsection (1), of the manner in which the trustee intends to exercise the power. A copy of the proposed instrument exercising the power shall satisfy the trustee’s notice obligation under this subsection. If all qualified beneficiaries waive the notice period by signed written instrument delivered to the trustee, the trustee’s power to invade principal shall be exercisable immediately. The trustee’s notice under this subsection shall not limit the right of any beneficiary to object to the exercise of the trustee’s power to invade principal except as provided in other applicable provisions of this code.
(5) The exercise of the power to invade principal under subsection (1) is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.
(6) Nothing in this section is intended to create or imply a duty to exercise a power to invade principal, and no inference of impropriety shall be made as a result of a trustee not exercising the power to invade principal conferred under subsection (1).
(7) The provisions of this section shall not be construed to abridge the right of any trustee who has a power of invasion to appoint property in further trust that arises under the terms of the first trust or under any other section of this code or under another provision of law or under common law.