Can an Irrevocable Trust be Changed? Trust Decanting under Florida Law
You do not have to be a Sommelier to be familiar with the concept of decanting wine. “Decanting”- the pouring of wine from its original bottle into a different vessel- is a technique utilized for two contemporaneous purposes; two separate the wine from any sediment that has formed it its original container, and to aerate the wine to enrich its flavors. It may be surprising, however, to learn that a similar legal concept exists for trusts, and is valuable for similar circumstances. As its name suggests, “trust decanting” is when a trustee creates a new trust, moving all the assets from the initial trust into the second trust, to either correct a mistake or unintended result- the hypothetical “sediment” that the initial trust may have incurred, or to strengthen the original purpose of the trust.
Under Florida law, the power to decant a trust is granted to any trustee other than the settlor or beneficiary who has the power to invade the trust principal; called an “authorized trustee.” Following a 2018 revision to Florida’s trust decanting statute, there are now three distinct ways in which a trustee may decant;