ABA: Allow Discretionary Interests Trust Changes Under Decanting Rules

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Beneficial interests that are both vested and fixed in a distributing trust should remain that way, but discretionary interests—because they are not vested—should be allowed to be modified in a decanting if the trustee exercises good faith, the American Bar Association Section of Taxation says. The tax section makes six recommendations on decanting, which effectively allows trustees to put the assets of an old trust into a new trust. Among the recommendations, in addition to fixing beneficial interests that are also vested, the tax section said no taxable gifts should occur on a transfer to a receiving trust by the distributing trust trustee, “because a trustee has no donative intent and cannot satisfy the elements for a taxable gift.”

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