11. Trustees Do Not Require Court Approval To Decant a Trust. Estates, Powers and Trust Law (EPTL) §10-6.6 permits "decanting," which allows the trustee of an otherwise irrevocable trust to transfer trust assets into a new trust with different terms. Matter of Seliger, N.Y.L.J., Dec. 27, 2021, at p. 17 (Sur. Ct., Westchester Co.) is a useful reminder and recap of the factors required to effect a decanting under the statute.

In Seliger, decedent created a testamentary marital trust of fine artwork for his wife's benefit, appointing as trustees his wife and an independent trustee. Over wife's objection, independent trustee decanted the marital trust to a new inter vivos trust created by the decedent's children from a previous marriage, but wife refused to turn over the artwork. In response to a turnover proceeding to recover the artwork, wife effectively moved for summary judgment, contending that the independent trustee violated EPTL §10-6.6(c)'s requirement that an appointed trust contain the same language as the original trust if a trustee's discretion to invade principal was limited. The court disagreed with wife's contention that the requirement to distribute to her net proceeds from the sale of any artwork limited trustee's discretion to appoint principal. The court found that the original trust gave trustee absolute discretion to invade principal, which was in no way limited by that requirement. Accordingly, trustee was not required to decant to a trust which included the same language as the original trust.