On August 21, 2025, Delaware Governor Meyer signed into law this year’s set of annual updates to Delaware’s sophisticated trust statutes. It is called the Trust Act 2025. How the Trust Act comes into existence each year is pretty interesting. It’s like Delaware corporate law. Delaware attorneys specializing in Trusts and Estates, who use Delaware’s premier statutes and case law for sophisticated transactions, get together months ahead. They form a committee called the Trust Act Committee. They discuss problems or clarifications arising for their clients over the past year and recommend statutory amendments. The purpose is to stay cutting-edge and to help Delaware keep its national preeminent reputation for Trusts and Estates law.

That Trust Act Committee reports to its authorizing body, the Estates and Trusts Section of the Delaware State Bar Association, who first approves the Trust Act. A series of required approvals ensues, culminating in passage by the General Assembly and signing by the Governor.

The point is, the Trust Act begins with the skilled attorneys who are working with the statutes and case law. Actually, the Trust Act begins with their clients: it is the clients who drive the story.

I’m privileged to be a member of the group of attorneys from which the Trust Act Committee is born: the Estates and Trusts Section of the Delaware State Bar Association. Our monthly meetings resume in September following the summer recess. We have committees focused on different pieces of legislation and topics. Our members are scholarly practitioners; their daily work involves interpreting Delaware statutes and judicial-made law, drafting agreements, advising beneficiaries and trustees, resolving clients’ sophisticated issues, and litigating disputes in our nationally-renowned court system, including Delaware’s Court of Chancery.

Delaware’s Trusts and Estates Laws Are Not Just for the Rich and Famous

Many Trusts and Estates practitioners using Delaware’s sophisticated trust laws have clients of pretty significant means. Often the clients have few connections to Delaware. This is a good thing: there is a whole industry of Delaware attorneys, trustees, accountants, financial professionals, and professionals of all kinds who make their living by servicing these clients who have a Delaware nexus.

But as I review this year’s final version of the Trust Act 2025 and look back on some of my key matters in 2025, I am struck by the obvious from my day-to-day practice: that the client-driven statutory corrections and improvements are actually for EVERYONE, not only the rich and famous.

Non-Special Needs Estate Planning

Following are just a few of many examples:

Directed Trusts are a very useful tool. They are good for the rich and famous, and for the not. The role of trustee can be trifurcated among distributive, investment, and administrative powers. This allows the trustmaker to design a team of the right persons in the right roles to serve the beneficiary.

Asset protection is real. An attorney daughter of a successful businessman wishes to receive her inheritance in a trust where it is as close to impossible as possible for someone suing her to reach the trust assets.

Beneficiaries who receive trust inheritance sometimes want their inheritance outright instead. Through statutory compliance, modification may be possible.

A trustmaker is living and wants to change the irrevocable trust he/she created. Change may be possible using modification statutes including Modification of Trust by Consent While Trustor is Living.

The trustmaker is deceased. The beneficiaries and trustee want to change the trust. A Nonjudicial Settlement Agreement or other modification may be possible.

Powers of appointment allow a trust beneficiary to change how the remaining trust flows on their death to specified class members and satisfying requirements.

Decanting is the Swiss Army knife of trust modifications. The trustee pours its corpus into a new trust, or even back into its same trust, with new terms.

If decanting is the Swiss Army knife of trust modifications, a Trust Protector is the human equivalent of a Swiss Army knife. A Trust Protector can be used to make certain changes when the main parties are not able, without having to go to Court.

In a fast-moving society where things are changing constantly, flexibility is key for everyone - regardless of how rich and famous. Delaware’s statutes provide the tools for intent-conforming and for adjustments that make sense.

Special Needs Trusts: Modifications That Matter

Ask someone about a Special Needs Trust, and he/she thinks of forming the trust.

But what about when the trust is formed with a legal error? Or the law changes? Or the beneficiary’s needs change?

First party special needs trusts are irrevocable; third party supplemental needs trust often start out as revocable but end up irrevocable. If a trust is irrevocable, how can it be changed?

We turn to the Trusts and Estates tools above to modify these vital trusts for special needs beneficiaries.

One example is a Will by mother. Mother died. Will validly created a special needs trust for daughter. But the language creating the trust forbade distributions for anything that would violate public benefits rules. That was too restrictive for this daughter who was high functioning. Through the Swiss Army knife of decanting, a new trust with appropriate restrictions threads the needle: the daughter preserved access to her public benefits, but the trustee’s discretion was adapted to the more modern supplemental and discretionary standard.

Same example as above. The article in mother’s Will creating the special needs trust was three paragraphs long and embedded in the Will. How is daughter to make the public agencies aware of her trust terms? What even are her trust terms? Decanting allowed the creation of a standalone document, fully fleshed out, for daughter to provide to public agencies as a full trust they are accustomed to seeing. The three paragraphs in her mother’s Will weren’t wrong, but like so many things in life, it’s the little things that matter. Having a standalone full trust to hand to the public agencies made the daughter’s and trustee’s lives easier.

Other examples abound. Add a power of appointment to get a step up in basis for a beneficiary’s share. Modify a trust because it has a legal error. Under the Trust Act 2025 changes to 12 Del. C. § 3326, have a trustee resign, and another appointed, if the governing instrument was lacking.  These and other types of modifications are possible through compliance with Delaware’s forward-looking and flexible trust modification statutes.

Don’t Assume the Trust Cannot Be Changed

The lesson of the story is don’t assume nothing can be done to change a trust, especially if you are a beneficiary or trustee of a special needs trust. Through diligent study and use of Delaware’s Trusts and Estates law and the complex overlay of federal and state special needs law, we are uniquely equipped to determine and effect possible solutions that can make all the difference in a beneficiary’s life.