If decanting makes sense, pay careful attention to the statutory requirements under which the decanting is achieved. Planning for the inevitable of aging is emotionally difficult to face.One common restriction on decanting is not adding new beneficiaries, as confirmed in a recent case. Practical steps such as consolidating assets, organizing and computerizing records, involving children or others who will serve in fiduciary capacities so that they are aware of their roles, and more, is essential.The Practical Planner is a bi-monthly electronic (or if you prefer, paper) sophisticated planning newsletter that provides practical and creative ideas to address estate, tax, business, personal, financial, and asset protection planning.
For example, one technique is to give someone a general power of appointment over a trust.
That means they will be given the right to designate who will receive the assets of the trust. While layers of limitations can be placed on such powers they do bring increased layers of complexity.
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There are also a host of modifications or precautions you can consider: defer your right to receive any distributions for 10 years (the bankruptcy laws permit a trustee in bankruptcy to set aside transfers to self-settled trusts with 10 years); instead of having yourself listed as a beneficiary let a trusted person acting in a non-fiduciary capacity (i.e., not a trustee or trust protector) have the power to appoint descendants of your grandparents.
Thus, you are not a beneficiary when the trust is created, so arguably the trust is not a self-settled trust.
Another common basis maximizing technique is to borrow money on appreciated assets and gift the borrowed funds away.
This is particular useful to avoid tax in a decoupled state that has no gift tax (e.g., New Jersey).
Should years in the future you need access to trust funds the trusted person might add you as a beneficiary. This creates interesting planning opportunities, but it might also create a new risk for trustees.