13 May 2019

Withers’ Jenny Bratt and Catherine Swafford discuss California’s new decanting law


The Los Angeles-based Daily Journal featured the article, “A Brief Overview of the California Uniform Trust Decanting Act,” co-authored by Withers attorneys Jenny Bratt and Catherine Swafford on May 1. The article provides practitioners with a brief overview of the procedural and potential litigation aspects of California’s long and complex new decanting act.

The California Uniform Trust Decanting Act is effective January 1, 2019, and applies to trusts that have their principal place of administration in California, or provide they are governed by California law for administration or construction. It applies to irrevocable trusts and trusts that are revocable by the settlor only with the consent of the trustee or an adverse party.

The article explains how the new decanting act is a significant development in California probate law that provides an alternative to traditional trust modifications. “When considering modifying an irrevocable trust, practitioners should now consider decanting,” Jenny Bratt and Catherine Swafford write.

Planners and litigators alike should become familiar with the new law because clients will have more planning options, and a new body of litigation may develop in the coming years.

The authors also recommend that if a trustee is concerned the decanting could give rise to liability, it may be advisable to file a decanting petition. The trustee could also file a petition for instructions or approval.

Jenny Bratt, a partner based in the firm’s Rancho Santa Fe, California office, focuses on US and international estate and income tax planning, trusts and estates administration, family and closely held business planning and charitable planning and exempt organizations. She serves on the Executive Committee of the Trusts and Estates Section of the California Lawyers Association, and was involved in the passing of the act. Catherine Swafford, an associate based in the firm’s San Diego, California office, practices exclusively in trust, estate, and fiduciary litigation.

Jenny Bratt and Catherine Swafford recently co-authored a related article in the California Trusts & Estates Quarterly, Volume 25 Issue 1-2019, entitled, “Wine Not? The New California Trust Decanting Act.” They have presented on the topic to attorneys across the state and will continue to do so into the fall.

Click here for full article at the Daily Journal. Please note a subscription is required.

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Category: Article