Section 40 Introduction

• Library: Trust and Estate Legislation 2012

Over the past few years, “decanting,” or appointing the assets of one irrevocable trust to another trust, has emerged as
one of the most dynamic issues in trust law. More and more state legislatures are enacting statutes expressly permitting it (or regulating it) as attorneys across the country are awakening to its benefits. Among the several good recent summaries are:

· William R. Culp, Jr. & Briani Bennett Mellen, Trust Decanting: An Overview and Introduction to Creative Planning Opportunities, 45 Real Prop. Trust & Est. L.J. (2010)

· Thomas E. Simmons, Decanting and Its Alternatives: Remodeling and Revamping Irrevocable Trusts,
55 S.D. L. Rev. 253 (2010)

· William R. Burford & Patricia H. Char, Renegotiating the Irrevocable Trust: Amending, Decanting, and Judicially Modifying, 14 A.L.I.-A.B.A. Est. Plan. Course Materials J. 37 (2008)

· Alan S. Halperin & Lindsay N. O’Donnell, Modifying Irrevocable Trusts: State Law and Tax Considerations in Trust Decanting, 42 Heckerling Inst. on Est. Plan. 13-1 (2008) (expanded on Alan S. Halperin & Michelle R. Wandler, Decanting Discretionary Trusts: State Law and Tax Considerations, 29 Tax Mgmt. Est., Gifts & Tr. J. 219, 225–26 (2004))

Missouri is no exception, having enacted a decanting statute in 2011. Section 456.4-419, RSMo Supp. 2011. If, in 2004,
the MUTC (Missouri Uniform Trust Code), §§ 456.1-101–456.11-1106, now RSMo Supp. 2011, began offering new techniques to modify or terminate trusts, the decanting power goes one step further by allowing modifications—via the creation of a new trust altogether—even without the consent of the...