Trust Decanting Requirements in New Hampshire
At a glance
| Governing law and available decanting route | RSA 564-B:4-418, trustee's power to decant; appoint some/all first-trust property to an existing irrevocable, restated, modified-first, or new second trust. Decanting is an administrative matter (§ 564-B:4-418(a),(a-1)) |
|---|---|
| First-trust scope, state connection, retroactivity, and opt-out | New Hampshire law governs the administrative matter under the trust's designation or most-significant-relationship test. No creation-date cutoff stated. Irrevocability, nonamendment, spendthrift terms, no distribution discretion, or a standard alone do not bar; trust terms may expand, restrict, eliminate, or otherwise alter power, while an NJSA may only restrict/eliminate (§§ 564-B:1-107, :4-418(a),(l),(n)) |
| Authorized fiduciary and required distribution power | Trustee; no distribution-discretion threshold—lack of income/principal discretion alone does not prohibit exercise. Beneficiary-trustee cannot loosen personal-distribution, ascertainable-standard, consent/adverse- interest, or support-obligation limits (§ 564-B:4-418(a),(k),(l)(4)) |
| Expanded, limited, mandatory, and ascertainable-standard branches | No expanded/limited statutory tracks. Second trust may impose a standard or no standard regardless of first trust; charitable first-trust standard must carry unless Director of Charitable Trusts expressly consents. No first- trust distribution discretion required (§ 564-B:4-418(d),(l)) |
| Beneficiary, vested-interest, and power-of-appointment changes | Only first-trust beneficiaries, but ≥1 may be excluded and future distributees may become current. Appointment powerholder must be first- trust beneficiary or first-trust powerholder. Cannot reduce/eliminate defined vested interest or conflict with first-trust material purpose (§ 564-B:4-418(b)-(c),(f)-(g)) |
| Second-trust terms, duration, governing law, and administration | Existing irrevocable trust, complete restatement, modified first trust, or new trust; same/different name and optional new TIN for restatement/ modification; longer term allowed. Full appointment terminates first trust, vests title/contract rights/liabilities in second, and permits trustee-name substitution in pending proceeding (§ 564-B:4-418(a-1),(e),(q)-(r)) |
| Tax, charitable, special-needs, compensation, and other guardrails | Decanting cannot jeopardize first-trust tax deduction/credit/exclusion/ exemption or settlor/beneficiary public-benefit eligibility. Charitable distribution standard protected absent director consent. Related-or- subordinate successor plus beneficiary removal and unbounded distribution combination barred; beneficiary-trustee personal/support limits carry (§ 564-B:4-418(d),(h)-(k)) |
| Notice, recipients, consent, waiver, objection, and representation | Charitable trust or vested charitable-organization interest: written notice to Director of Charitable Trusts ≥30 days before effectiveness. Noncharitable beneficiary notice optional; if proposal states objection right/time, objection right ends 60 days after sending. No notice contents, delivery, representation, or waiver rule otherwise stated; no settlor or beneficiary consent required (§ 564-B:4-418(m),(p)) |
| Exercise instrument, court review, effectiveness, and remedies | Section states no exercise-record, signature, acknowledgment, filing, saving, defect, liability, or limitation procedure. Court approval not required, but trustee/other interested person may request approval. Full appointment terminates first trust and automatically vests title, contracts, liabilities, and pending-proceeding substitution in second trust (§ 564-B:4-418(p)-(r)) |
Requirements one by one
One power, without a distribution-discretion threshold
RSA § 564-B:4-418(a) defines decanting as appointing some or all first-trust property to a second trust and calls the power an administrative matter. Under RSA § 564-B:1-107, the trust's valid governing-law choice controls the meaning and effect of its terms, or the most-significant-relationship jurisdiction's law controls absent a designation.
New Hampshire does not split authority into expanded- and limited-discretion tracks. Subsection (l) says lack of any income or principal distribution discretion does not alone prohibit decanting. Subsection (d) permits the second trust to impose a standard or no standard regardless of the first trust's standard, except that a charitable first-trust standard carries forward unless the Director of Charitable Trusts expressly consents to its modification or elimination.
Beneficiaries, vested interests, and second-trust form
The second trust may include only first-trust beneficiaries, but may exclude one or more of them and may make a future distributee currently eligible. A person may hold an appointment power only if the person was a first-trust beneficiary or held a first-trust appointment power.
Subsections (f) and (g) bar inconsistency with a material purpose and reduction or elimination of a defined vested interest. The second trust may be an existing irrevocable trust, a complete restatement, the modified first trust, or a new trust, and it may have a longer term. A restated or modified trust may retain or change its name and taxpayer identification number.
Notice is branch-specific
Under subsection (m), a charitable-trust trustee—or a trustee of a trust in which a charitable organization has a vested interest—must notify the Director of Charitable Trusts in writing at least 30 days before effectiveness. A noncharitable-trust trustee may notify a beneficiary but has no duty to do so.
If a beneficiary proposal states the right and time to object, the beneficiary's objection right ends 60 days after the proposal was sent unless the beneficiary objects. The statute supplies no separate waiver rule for that period. Subsection (p) makes settlor consent, beneficiary consent, and ordinary court approval unnecessary.
Court review and complete-transfer effect
The section states no required exercise record, signature, acknowledgment, filing, or statutory saving procedure. A trustee or other interested person may ask a court to approve the exercise even though court approval is not ordinarily required.
When all first-trust property is appointed, subsection (q) terminates the first trust and vests its property title, contractual rights, and liabilities in the second trust. Subsection (r) permits substitution of the second-trust trustee's name in a pending proceeding.
What trips people up
No distribution discretion is required merely to enter the statute, but the material-purpose, vested-interest, tax, public-benefit, beneficiary-trustee, and fiduciary-duty limits still constrain the exercise.
The 60-day period is not a universal advance-notice requirement. It limits an informed beneficiary's objection right only after the trustee voluntarily sends a qualifying proposal. The mandatory branch is the 30-day Director of Charitable Trusts notice for the specified charitable interests.
Common questions
May the second trust exclude a beneficiary?
Yes, if the person was a first-trust beneficiary and the exclusion does not reduce or eliminate a vested interest or conflict with a material purpose.
May a limited-discretion trustee create broader discretion?
Subsection (d) permits a second-trust standard or no standard regardless of the first trust's distribution standard, subject to the charitable exception and all other limits in the section.
Is a court order required?
No. Subsection (p) makes ordinary court approval unnecessary, but a trustee or other interested person may ask the court to approve the exercise.
Statutes and sources
- RSA § 564-B:4-418 — complete current trustee-decanting section, including authority, beneficiaries, standards, vested interests, tax/public-benefit limits, notice, opt-out, court approval, and complete-transfer effects. Official text (accessed September 12, 2026).
- RSA § 564-B:1-107 — governing law for the meaning and effect of trust terms and New Hampshire's significant-relationship rule. Official text (accessed September 12, 2026).
Source links
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