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As oenophiles know, red wine often produces sediment as it ages, introducing a bitter flavor and gritty texture to the wine. The process of removing these impurities by carefully pouring the wine from the original bottle into a new vessel before serving is known as “decanting.” An old trust agreement can similarly acquire “sediment” in the form of tax provisions that are no longer applicable or distribution requirements that are no longer appropriate. In the trust context, the term “decanting” refers to the process of carefully appointing assets from an old trust to a new trust with more favorable terms. The practical effect of the appointment is to revise the terms governing the original trust agreement. If a trust instrument’s provisions do not provide the trustee with an amendment power, decanting may be the best way to modify unfavorable provisions and can be accomplished in New York without consent from the person who created the trust, the beneficiaries, or any court.

Decanting may be useful, for example, when a trust agreement requires mandatory distributions at a time when the beneficiary is involved in a messy divorce or is struggling with substance abuse, a distribution in the next year might not be in that child’s best interest. In the case of a disabled beneficiary, decanting a trust into a third-party supplemental needs trust may be particularly advantageous because, although new trust (the “appointed trust”) will be created with assets set aside for the beneficiary, that beneficiary will not be considered the creator for purposes of the Medicaid payback provisions. See, e.g., Kroll v. New York State Dep’t of Health (N.Y. App. Div. 2016).

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