Florida Bar Journal

New Opportunities to Decant in Florida, Part II: Successful Execution of Trust Decanting

Part I of this article reviewed the 2018 changes to Florida’s trust decanting statute, discussing in particular the expanded authority for a trustee to decant to a supplemental needs trust for the benefit of a beneficiary with a disability. In this part, I will delve into the mechanics of successfully decanting a trust and explore how decanting might affect a trust beneficiary with special needs beyond the obvious change in the provisions of the trust itself.

Options for Decanting

As discussed in Part I, the scope of changes that can be effectuated through decanting is defined by the breadth of an authorized trustee’s power to invade and appoint principal among the beneficiaries. An authorized trustee with absolute power to distribute principal may decant under §736.04117(2), which allows the broadest changes to the terms of the first trust, whereas an authorized trustee whose power is limited by an ascertainable standard, i.e., health, support, maintenance, and education, also known as the “HEMS” standard, will be limited to decanting under §736.04117(3), which allows fewer options for change. If decanting will benefit a beneficiary with a disability and further the purposes of the first trust, then an authorized trustee may decant to a supplemental needs trust for the benefit of that disabled beneficiary under §736.04117(4), regardless of whether the authorized trustee’s power to distribute principal is limited.

Note, then, that an authorized trustee seeking to decant to a supplemental needs trust for the benefit of a beneficiary with a disability may have some options and is not necessarily limited to decanting only under §736.04117(4). For example, where an authorized trustee seeks to decant in favor of a disabled beneficiary and has the absolute power to invade principal, then decanting under §736.04117(2) might be preferable to decanting under §736.04117(4) because the decanting would be subject to fewer restrictions and the authorized trustee could exercise broader power. In making this determination, special consideration must be taken to ensure that the provisions of §736.04117(2)(a)2 prohibiting a reduction in the second trust of any vested interest are not violated. “Vested interest” is rather narrowly defined in §736.04117(1)(k) to exclude the mandatory right to withdraw or receive distribution of income, a specific pecuniary amount, or percentage of the trust’s value that is dependent upon the occurrence of a specific event, passage of time, or exercise of discretion. In other words, a beneficiary’s unconditional and immediate right to withdraw 50% of the trust’s value would be a vested interest, while the beneficiary’s right to withdraw 50% of the trust’s value at age 40 would not be a vested interest at the time the beneficiary is age 35.^[1] Considering this, an interest of a beneficiary with a disability that is “vested” as defined by statute would probably not be eligible for decanting to a supplemental needs trust under subsection (2) since the terms of a supplemental needs trust would almost certainly (and necessarily) reduce that vested interest, but an interest that is not “vested” may be.

In other words, nothing requires an authorized trustee to use subsection (4) to decant for the benefit of a disabled beneficiary if the requirements of subsection (2) can be met. Under the right circumstances, it may even be possible to decant certain beneficiaries’ interests under subsection (2) while decanting the beneficial interest for a disabled beneficiary under subsection (4) in a separate act of decanting.

Obstacles to Decanting

In addition to the restrictions inherent in subsections (2), (3), and (4), the provisions of §736.04117 may present other obstacles and restrictions to decanting, whether decanting to a supplemental needs trust under §736.04117(4) or not. These obstacles include the following:

• An authorized trustee may not decant a trust that expressly prohibits it.^[2] This is important to remember not only in determining whether decanting a particular trust is possible, but also when drafting. While decanting offers tremendous flexibility in dealing with uncertain future circumstances, which is often welcomed from a drafter’s perspective, the breadth of that flexibility may be unsettling to a settlor. Some settlors may be uneasy knowing that the express terms of a trust they thoughtfully and painstakingly crafted with their personal values in mind may be later changed in the trustee’s discretion. Therefore, it is prudent to review with clients whether the possibility of decanting under §736.04117 should be eliminated through drafting. For settlors who are not opposed to the concept of decanting but wish to limit its application, the drafter may consider language that grants the power to decant under certain circumstances and prohibits it under others. Be warned, however, that where decanting provisions are drafted in trust documents separate and apart from §736.04117, the failure to comprehensively address all possible issues might later prove problematic, particularly if the decanting provisions in the trust document are viewed as completely supplanting §736.04117.

• An authorized trustee may not decant if doing so would interfere with a federal tax exclusion, deduction, or benefit that was or could have been claimed, including a marital deduction, charitable deduction, generation-skipping tax direct skip treatment, or any other tax benefit for income, gift, estate, or generation-skipping transfer (GST) tax purposes.^[3]

• An authorized trustee may not decant if doing so would interfere with the trust being considered a permitted shareholder of S corporation stock or prevent the trust from being a qualified subchapter S trust.^[4] This requires an authorized trustee who seeks to decant a trust to consider not only the dispositive terms of the trust but also the assets funding the trust.

• While the first trust’s status as a grantor trust under I.R.C. §§671-679 has no bearing on whether an authorized trustee may decant, decanting cannot be used to obtain grantor trust status over a nongrantor trust unless the settlor at all times has the power to cause the second trust to cease being treated as if it were owned by the settlor.^[5] This provision focuses on the grantor of a trust from an income tax perspective, which is a distinct concept, from who is treated as settlor of a trust under federal law for public benefits purposes. For example, a third-party supplemental needs trust, which by definition is funded with assets originating from someone other than the disabled beneficiary, may be drafted either as a grantor trust by including one of the grantor trust powers of §§671-679 or as a nongrantor trust by omitting all grantor trust powers, while a self-settled supplemental needs trust, which is funded with assets originating from the disabled beneficiary, is treated as a grantor trust for income tax purposes. Grantor trust status, however, has (or should have) little if any bearing on whether a trust is treated as being settled by the disabled beneficiary or being settled by a third party for public benefits eligibility purposes.

• An authorized trustee may not decant any interest in a trust that is subject to the required minimum distribution rules for certain retirement accounts if doing so would shorten the applicable maximum distribution period.^[6] Similar to the restriction regarding S corporation stock, this requires the authorized trustee to consider the assets funding the first trust. If the first trust owns an IRA that qualifies for a distribution period based upon the trust beneficiary’s life expectancy because all required minimum distributions must be paid to the beneficiary (i.e., a trust sometimes referred to a “conduit trust”),^[7] the terms of this trust would render it a countable resource for the benefit of a disabled beneficiary for public benefits eligibility purposes so it may be desirable to decant under §736.04117(4) to a supplemental needs trust. The supplemental needs trust would allow the authorized trustee to accumulate the required minimum distribution payments in trust indefinitely and make distributions only in the trustee’s discretion (i.e., a type of trust sometimes referred to as an “accumulation trust”). If a conduit trust is decanted to an accumulation trust, then care must be taken to ensure that the accumulation trust meets all statutory requirements to qualify it for the same applicable maximum distribution period^[8] so as not to violate this restriction on decanting.

• An authorized trustee may not decant in a way that violates the rule against perpetuities. Any exercise of the decanting power under §736.04117 will be subject to the provisions of §689.225 as to the beginning date and termination of the permissible period that applies to the first trust.^[9]

• An authorized trustee may not decant to increase trustee compensation, release the authorized trustee from liability for breach of trust, or indemnify the authorized trustee to any greater extent than what the first trust provided.^[10]

• As with trust modification techniques, a spendthrift provision in a trust does not prohibit decanting.^[11] Similarly, a provision in a trust that prohibits amendment or revocation of a trust does not prohibit decanting.^[12] Alternatively, an authorized trustee’s power to decant under §736.04117 does not in any way abridge common law rights or powers to decant.^[13]

Decanting to Change Situs

As mentioned in part I of this article, §736.04117 permits an authorized trustee to decant to a trust created or administered under the law of any jurisdiction, not just Florida.^[14] This greatly expands the usefulness of decanting because it may be used specifically to change the situs of a trust. Not only could decanting be used to change situs of a trust administration if there were no longer a sufficient nexus to Florida to justify its continued administration here,^[15] but decanting may also be used to escape what might be perceived as unfavorable requirements governing trust administration. For those instances in which decanting is used to create a supplemental needs trust under §736.04117(4), changing the situs of the trust to the state of the disabled beneficiary’s residence may become particularly important to ensure the beneficiary’s continued eligibility for public benefits.^[16]

Before changing situs, however, it would be prudent to carefully consider state laws governing trust administration and any state nongrantor trust income tax filing requirements to which the second trust will be subject as a result of the new situs.^[17] Living in a state without an income tax requirement, it is sometimes easy to overlook income tax filing requirements for nongrantor trusts, in particular because it is simply not part of our everyday practice. However, the failure to consider tax law and the law governing trust administration prior to decanting may leave the trust beneficiaries and trustees in a worse circumstance overall.

Exercise of Decanting Power

Decanting is exercised by written instrument, signed and acknowledged by the authorized trustee, and filed with the records of the first trust.^[18] Before decanting is effective, 60 days’ written notice must be given to all qualified beneficiaries of the first trust, all trustees of the first trust, any person who has the power to remove or replace the authorized trustee of the first trust, and in some cases, the settlor of the first trust.^[19] The notice requirement is satisfied when the authorized trustee provides copies of a written instrument describing the manner in which the trustee proposes to exercise the decanting power, a copy of the first trust, and a copy of the proposed second trust.^[20] Providing notice does not in any way limit a beneficiary’s right to object unless as otherwise provided by law.^[21] Thus, the expiration of the 60-day time period allows an authorized trustee to proceed with decanting, but it does not prohibit a beneficiary from later challenging the decanting. To further protect itself, an authorized trustee may choose to provide all trust beneficiaries with a trust accounting disclosing the decanting and including a limitation notice that would effectively reduce the statute of limitations for a challenge to six months.^[22]

If an authorized trustee wishes to decant more quickly than this, the trustee may secure waivers of the time period from all those who are required to be notified of the decanting.^[23] In its simplest state, waiver is effectuated by a signed written instrument delivered to the authorized trustee, but in order to ensure that the waiver is knowing, intelligent, and voluntary, prior written notice consistent with statutory requirements should be given by the authorized trustee and acknowledged by those receiving the notice.^[24] One simple way to accomplish this is by requesting that each recipient of the notice sign and date a written acknowledgement of receipt of the notice appended to the bottom of the notice itself. Upon the authorized trustee receiving valid waivers from all those statutorily required to be notified of the decanting, the decanting may immediately proceed.^[25] A valid waiver from a beneficiary should also preclude that beneficiary from later challenging the decanting.

Note that no court approval is required to decant under §736.04117, but nothing in the Florida Trust Code prevents a trustee from seeking court approval, either. In some circumstances, such as a particularly difficult administration, an adversarial relationship among the beneficiaries or with the trustee, or a complex estate plan, court approval might be well advised. Human nature being what it is, beneficiaries tend to be sensitive to changes that impact the administration in a way seemingly inconsistent with their perception of the settlor’s intent, including the most personal of all circumstances, trust distributions to them. Trust beneficiaries may more easily accept significant changes to a trust if they feel a part of the process, and anything that makes life easier for beneficiaries tends to make life easier for the trustee in the long run. Therefore, when deciding to decant, it is in a trustee’s best interest to approach decanting with somewhat of a long-term perspective, looking beyond the mechanics of the process and giving due consideration to the relationships and lives that will be affected as a result. Seeking court approval might be an important part of this by heading off future legal issues while providing the trustee with some degree of protection against liability.

Effect of Decanting on Public Benefits

Properly drafted first-party special needs trusts created under 42 U.S.C. §1396p(d)(4)(A) (commonly referred to as “d4A trusts”) and pooled special needs trusts created under 42 U.S.C. §1396p(d)(4)(C) meet the definition of a “supplemental needs trust” under §736.04117(1)(j). Therefore, decanting involving these trusts is possible from a trust administration perspective, but it should be approached with caution from a benefits eligibility perspective.

Because of the 2018 revisions to §736.04117, trusts with disabled beneficiaries needing government benefits may be decanted from “traditional” or “support”-type trusts, such as mandatory income distribution trusts, to supplemental needs trusts that will allow the beneficiary to qualify for needs-based government benefits. Under certain circumstances, the supplemental needs trust resulting from the decanting may be viewed for benefits eligibility purposes as a self-settled d4A trust, even though the trust corpus comprising the first trust did not originate from the disabled beneficiary and even though there is no basis in trust administration law to support this conclusion.^[26] At least one state court has held that where a third-party special needs trust was decanted prior to the date upon which the disabled beneficiary’s right to withdraw trust principal matured, the second trust remained a third-party special needs trust and did not transform into a d4A trust.^[27] Unfortunately, however, that state court was not in Florida.

From time to time, an authorized trustee might consider decanting a d4A trust for a disabled beneficiary already receiving needs-based benefits. If an existing valid d4A trust contains a clause that causes the beneficiary’s ineligibility for Supplemental Security Income (SSI) due to a change in policy, a policy clarification, or the reopening of a prior erroneous determination, the Social Security Administration allows a d4A trust to be modified while preserving the beneficiary’s eligibility for benefits if the applicable state law regarding trust modification is followed.^[28] If, however, a d4A trust has provisions that are unnecessarily restrictive, or if the beneficiary’s needs or state of residence have changed, then §736.04117 should theoretically be available to decant to another d4A trust without any impact on the disabled beneficiary’s eligibility for needs-based government benefits, provided that statutory requirements for decanting are strictly followed and the second d4A trust complies in all respects with federal requirements, including the d4A trust being established through the actions of the disabled beneficiary’s parent, grandparent, or legal guardian or, for d4A trusts established after December 13, 2016, the disabled beneficiary.^[29] If the authorized trustee of the first d4A trust is also the disabled beneficiary’s parent, grandparent, or legal guardian and wants to establish the second d4A trust, then it must be clear that the authorized trustee is acting in his or her individual capacity and not in a fiduciary capacity, as federal law does not recognize a trust established by a trustee as a valid d4A trust.

Note, however, that decanting 100% of the assets from an existing d4A trust to a second d4A trust may risk a determination by the Social Security Administration that the first d4A trust was in fact terminated. This should not be the case, as decanting by definition transfers the trust corpus intact between trust instruments and does not in any way terminate the trust, but if the Social Security Administration nonetheless determines that the first d4A trust was terminated, it would trigger the requirement, in the Social Security Administration’s eyes, that the trust immediately reimburse the amount of all Medicaid assistance paid on the behalf of the beneficiary under all state Medicaid plans. Because of this risk, rather than decanting 100% of an existing d4A trust to a second d4A trust, a better alternative might be to either use techniques more familiar to the Social Security Administration, such as trust modification of the existing d4A trust or, if the disabled beneficiary is under age 65, to distribute most (but not all) of the d4A trust to the disabled beneficiary, who would then establish another d4A trust with the distributed assets. While this second alternative would cause the disabled beneficiary to lose SSI benefits in the month that the first d4A trust was distributed to the beneficiary, this may be an acceptable cost to remedy substantial issues for an existing d4A trust while avoiding some of the risks associated with decanting.

Problems with the terms of the trust are not the only reason that decanting a d4A trust might be desirable. Many corporate trustees will not continue to serve as trustee of a d4A trust once the trust corpus dips below a minimum threshold. In other cases, the value of the trust assets may decrease to the point that the continuing costs of administration, such as trustee fees, asset management fees, and fees for preparing required annual accountings and income tax returns, may become burdensome. In addition, because all supplemental needs trusts — particularly d4A trusts — are highly technical trusts, it may be difficult to find an appropriate trustee who is well versed not only in trust administration law but also in the law governing public benefits, which is important to ensure that distributions do not inadvertently disqualify the disabled beneficiary from benefits. When these circumstances arise, it may be useful to decant a portion (but not all, for the same reasons discussed above) of the assets in the d4A trust to a pooled special needs trust established under 42 U.S.C. §1396p(d)(4)(C) by executing a joinder agreement to the master pooled special needs trust.^[30] Similar to the federal requirements for establishment of a d4A trust, the joinder agreement must be executed by the disabled beneficiary (personally or through his or her agent-in-fact under a power of attorney) or the beneficiary’s parent, grandparent, or legal guardian or according to court order; by federal law, it may not be executed by the trustee of the d4A trust in his or her fiduciary capacity.^[31]

By retaining a nominal amount in the d4A trust, the d4A trust is not terminated so the Medicaid lien pay-back provisions are not triggered. Funds in the pooled trust should preserve the beneficiary’s eligibility for SSI benefits, provided that the transfer occurs prior to the beneficiary reaching the statutory age limit of 65. Pooled trusts are administered by professional non-for-profit corporate trustees who are generally proficient in all types of government benefits, and while pooled trusts often have the same expenses as d4A trusts,^[32] they are generally not subject to minimum account requirements often seen with other professional trustees. All things considered, these advantages may provide ample reason to decant from a d4A trust to a pooled special needs trust.

Tax Consequences of Decanting

As with any estate planning technique, the tax consequences of decanting should be carefully considered, but not much mandatory authority regarding the tax consequences of decanting exists. In fact, the IRS has placed decanting on its “no ruling” list so it is not possible to get IRS guidance prior to decanting.^[33] Examination of all tax consequences of decanting is an undertaking of complex issues that deserve far more thorough treatment than what this article can begin to address.^[34]

In the broadest terms, however, gift tax is typically not generated by the exercise of a decanting power by a trustee who is not a beneficiary.^[35] Because the definition of an authorized trustee under §736.04117 does not include a trustee who is also a beneficiary, this issue can be avoided in large part by adherence to the statute. Wherever there might be a lingering concern about gift tax, such as where beneficial interests are shifted as a result of decanting,^[36] this may be avoided by the granting of a testamentary special power of appointment, thereby causing any potential gift to be an incomplete transfer for gift tax purposes.^[37]

Likewise, federal estate tax should not be generated from decanting, unless a beneficiary is granted a new general power of appointment in the second trust or decanting results in an incomplete gift that becomes complete upon the beneficiary’s death.^[38] In addition, decanting typically will not generate income tax unless the second trust is a foreign trust^[39] or the decanting results in a sale or exchange of property.^[40]

Finally, decanting from a GST tax-exempt trust to a new trust will not destroy the tax-exempt status provided that the guidelines in the Treasury Regulations are strictly followed.^[41] However, this issue may be easily overlooked by failing to consider the age of the first trust. Any trust that became irrevocable prior to the effective date of the GST tax^[42] and includes distributions that would otherwise be subject to GST tax is considered “grandfathered” for GST tax purposes. Therefore, when considering decanting, it is imperative to consider the age and distribution provisions of the first trust and whether the terms of the proposed second trust would deviate from IRS guidelines.

The Reluctant Trustee

Merely because an authorized trustee may decant a trust under §736.04117 does not mean an authorized trustee must act. Section 736.04117(10) specifically states that an authorized trustee has no duty to decant. Thus, even if an authorized trustee recognizes that the circumstances are “perfect” for decanting, an authorized trustee retains what is arguably unfettered discretion in deciding whether to decant. This means that the concerned parents of a beneficiary with a disability could probably not force an authorized trustee to exercise authority under §736.04117, no matter how much a beneficiary with a disability might benefit from decanting.

Clever drafting of a trust, however, might yield a different result. If a trust were drafted with language requiring an authorized trustee to act in the best interest of a beneficiary, even if that meant exercising the trustee’s power to invade principal to decant to a second trust, such language might persuade an otherwise reluctant trustee to decant, although an authorized trustee who is not so persuaded should still be protected by §736.04117(10) from a challenge by the disabled beneficiary who would benefit from decanting. Taking this one step further, if the trust were drafted with a power under §736.0808(2) directing an authorized trustee to exercise the power to invade principal under §736.04117 if certain circumstances are met such as the beneficiary becoming disabled, this direction may override the provisions of §736.04117(10) and, in effect, require an authorized trustee to decant should the specified circumstances occur.^[43]

Summary

Decanting is becoming more popular as practitioners realize the powerful changes that can be made — and the problems that can be solved — relatively easily and inexpensively through decanting. Florida’s update of §736.04117 provides additional fuel to propel this trend forward.

This column is submitted on behalf of the Elder Law Section, Randy C. Brian, chair, and, Heather B. Samuels and Genny Bernstein, editors.