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If a trustee is prohibited from exercising the power to decant (because, for example, the trustee is also a trust beneficiary), then a co-trustee or successor trustee may exercise the decanting power.
The power to decant is subject to several exceptions and limitations set forth in S.
The procedural process by which a trustee can exercise the power to decant is straightforward.
New York requires that the trustee enjoy absolute, unfettered authority to invade principal in order to decant a trust.
New York recognizes that the power to decant is a special power of appointment held by the trustee and requires notice to the beneficiaries, along with filing an instrument, which acknowledges the trustee's actions with the court.
An understanding of state fiduciary taxing regimes is necessary to appreciate the ability to decant a trust to a better state.