Trust Decanting Requirements in New York
At a glance
| Governing law and available decanting route | N.Y. EPTL § 10-6.6; calls route authorized trustee's power to “invade principal” and appoint all/part to irrevocable “appointed trust.” Statute supplies unlimited- and limited-discretion branches; does not authorize first-trust textual modification alone. Other instrument/statutory/common- law/court further-trust rights preserved (§ 10-6.6(b)-(c), (k), (s)) |
|---|---|
| First-trust scope, state connection, retroactivity, and opt-out | Existing irrevocable inter vivos/testamentary trust. Unless expressly otherwise: New York-governed trust, including changed governing law; or New York individual/entity trustee plus acknowledged majority-trustee selection of New York primary administration. Express prohibition controls; general no-amendment/no-revocation or spendthrift clause does not. Contrary creator intent bars only on substantial-evidence/likely-intent test (§ 10-6.6(h), (m), (r), (s)(6)) |
| Authorized fiduciary and required distribution power | Trustee(s) with authority to pay principal to/for current beneficiaries, excluding creator and beneficiary entitled/eligible to current or future income/principal (nonfiduciary appointment power excepted). Unlimited branch needs unmodified principal power; limited branch covers other invasion authority. Act prudently in best interests of proper objects; no current need, no duty to exercise, and no nonexercise inference (§ 10-6.6(f)-(h), (l), (s)(2),(9)) |
| Expanded, limited, mandatory, and ascertainable-standard branches | Unlimited means unmodified right; best interests/welfare/comfort/happiness does not limit. Limited branch keeps same current/successor/remainder beneficiaries and same distribution language; if extending beyond original termination, may add unlimited discretion only for extended period. Divided discretion uses trustee holding unlimited power (§ 10-6.6(b)-(c), (f), (s)(9)) |
| Beneficiary, vested-interest, and power-of-appointment changes | Unlimited may select/exclude current and successor/remainder beneficiaries, include future class members, and grant qualifying current beneficiary a discretionary/present power; appointee limits stated, or same first-trust power/class may carry. Limited keeps same beneficiary groups, later class members, distribution language, and appointment power/class. Cannot reduce current mandatory income/principal, annuity/unitrust, percentage, or fixed- dollar withdrawal right, except conforming supplemental-needs trust (§ 10-6.6(b)-(c), (n)(1)) |
| Second-trust terms, duration, governing law, and administration | Appointed trust is irrevocable and may be newly created by creator or trustees; either branch may extend term, with special limited-branch rule. Complete appointment presumptively includes later assets; partial does not. Exercise cannot violate EPTL §§ 9-1.1, 10-8.1, or 10-8.2; no section-level second-trust situs/governing-law choice stated (§ 10-6.6(c)(2), (e), (i), (p), (s)(1)) |
| Tax, charitable, special-needs, compensation, and other guardrails | Protect annual, marital, charitable, direct-skip, and other specific tax benefits; trustee must consider tax implications. Current mandatory rights may shift only to conforming supplemental-needs trust. Cannot reduce/ indemnify/exonerate trustee liability, eliminate remover without court, conclusively fix asset value, or change compensation absent court; no paying commission. Perpetuities violation under named sections voids entire exercise (§ 10-6.6(n)-(q)) |
| Notice, recipients, consent, waiver, objection, and representation | Serve exercise instrument plus both trusts on living creator, remover/ replacer, and persons interested in invaded and appointed trusts; protected person uses property guardian/conservator/personal representative, and minor uses parent/person with whom residing. Registered/certified return-receipt mail, personal delivery, or court-directed method. No consent/court approval required; all notice persons may consent in writing to earlier date. Written pre-effect objection preserves challenge; silence is not consent (§ 10-6.6(j)(1)-(5)) |
| Exercise instrument, court review, effectiveness, and remedies | Instrument signed, dated, acknowledged; states all/partial appointment and approximate percentage if partial. Effective/irrevocable 30 days after service or consented earlier date; revocable before then with parallel notice/filing. Keep copy with invaded-trust records; file original in court within 20 days after effect unless inter vivos trust has had no Surrogate's Court proceeding. Optional approval with notice; receipt does not foreclose accounting/objection and limitations is fact-specific. No duty to exercise; named perpetuities violation voids entire exercise (§ 10-6.6(j)-(l), (p)) |
Requirements one by one
State connection and trustee eligibility are distinct
Current § 10-6.6 covers an existing irrevocable inter vivos or testamentary trust governed by New York law. It also covers a trust with a New York trustee when a majority of trustees select New York primary administration in a signed and acknowledged instrument, unless the trust says otherwise.
The authorized trustee cannot be the creator or a beneficiary entitled or eligible to receive current or future income or principal. The trustee acts in the best interests of proper objects as a prudent person under prevailing circumstances.
Unlimited discretion may narrow the beneficiary set
The unlimited branch may select one or more current and successor or remainder beneficiaries to the exclusion of others. It may grant a qualifying current beneficiary a discretionary, including presently exercisable, appointment power and may preserve a first-trust power with the same appointee class.
Best interests, welfare, comfort, or happiness do not limit an otherwise unmodified principal-distribution right. N.Y. EPTL § 10-6.6(b), (s)(9).
Limited discretion preserves beneficiaries and core language
The limited branch keeps the same current, successor, and remainder beneficiaries and the same distribution language. Existing appointment powers and appointee classes continue. If the appointed trust extends beyond the first trust's termination, unlimited discretion may be added only for that extended period. N.Y. EPTL § 10-6.6(c).
Service starts a revocable 30-day window
The exercise instrument is written, signed, dated, and acknowledged. Serve it with both trusts on the living creator, anyone with removal/replacement power, and all persons interested in the invaded and appointed trusts, using the statutory representatives for protected persons and minors. Delivery is personal, registered or certified return-receipt mail, or court-directed.
The exercise ordinarily becomes effective and irrevocable 30 days after service. All persons entitled to notice may consent in writing to an earlier date. Before effectiveness the trustee may revoke, with parallel notice and any required court filing. N.Y. EPTL § 10-6.6(j).
Court approval is optional, but later filing may not be
The trustee may act without creator or interested-person consent and without court approval, or seek approval after notice. A copy stays with the invaded- trust records. Within 20 days after effectiveness, the original goes to the court with jurisdiction, except when an inter vivos trust has never been the subject of a Surrogate's Court proceeding.
A timely written objection preserves the interested person's position; silence is not consent. Receipt does not foreclose an accounting or objection, and the statute makes the limitations consequence fact-specific.
Substantive limits remain after procedural compliance
The exercise cannot reduce a current mandatory distribution, annuity or unitrust interest, or percentage/fixed-dollar withdrawal right, except through the stated supplemental-needs route. It cannot reduce or indemnify trustee liability, remove a replacement right without court, conclusively fix asset value, jeopardize specified tax benefits, or change compensation without court. No paying commission is allowed.
Violation of EPTL §§ 9-1.1, 10-8.1, or 10-8.2 voids the entire exercise. That express remedy should not be generalized to every procedural dispute.
What trips people up
A complete appointment presumptively carries later-discovered and later- acquired principal; a partial appointment does not. The trustee may provide otherwise. N.Y. EPTL § 10-6.6(i).
An express prohibition controls, but a general no-amendment/no-revocation or spendthrift clause does not. The section also creates no duty to decant and no impropriety inference from nonexercise.
Common questions
Must the trustee seek court approval?
No. Section 10-6.6(j)(1) makes approval optional, subject to notice and the other statutory conditions.
Is the instrument effective when signed?
Ordinarily no. It becomes effective 30 days after service unless all notice recipients consent in writing to an earlier date.
Must every inter vivos instrument be filed in court?
No. The post-effective filing exception applies when the inter vivos trust has not been the subject of a Surrogate's Court proceeding.
Statutes and sources
- N.Y. EPTL § 10-6.6 — complete appointed-trust scheme, including power tiers, eligibility, beneficiary and appointment limits, state connection, notice, instrument, effectiveness, filing, court, tax, liability, compensation, and remedy rules; official current text (accessed September 12, 2026).
Source links
Every statute quoted above, linked, with the date we checked it.
What does New York law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current New York law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace