Modern Trust Practice and the Restatement’s Blind Spots

In Time for a New Restatement, Thomas P. Gallanis argues that the Restatement (Third) of Trusts is now “out of date or silent” on important topics of modern trust law and practice. He offers three examples that illustrate the type of doctrinal gap he has in mind.

1. Directed Trusts: Mentioned, But Not Treated as a Modern Subject

Gallanis emphasizes that directed trusts have become a major feature of modern trust practice, supported by widespread statutory authorization. The Restatements of Trusts are not entirely silent on the idea of someone other than the trustee having power to direct trustee action, but Gallanis argues that the treatment is not adequate “given its modern prominence.”

His concrete point about the gap is that the Restatement materials approach direction indirectly—through older-style provisions about powers to control a trustee—rather than treating directed trusts as a coherent, modern doctrinal topic. He also notes that the Third Restatement’s brief reference to “trust protectors” appears only in a comment directing the reader to a reporter’s note, which he views as insufficient in the current era.

2. Trust Decanting: A Statutory Regime the Restatement Does Not Address at All

Gallanis’s decanting example is sharper. He notes that decanting is now typically authorized by statute and has spread widely across U.S. jurisdictions.

The gap he identifies is not “thin” coverage but absence: he reports that a Westlaw search shows the word “decanting” (and related forms) appears nowhere in the Restatement (Third) of Trusts—“not in the black letter nor in the Comments nor in the Reporter’s Notes.” If decanting is now a routine statutory tool, a Restatement that does not mention it cannot provide meaningful doctrinal synthesis for courts and practitioners.

3. Resolving Trust Disputes Outside of Court: A Modern Priority Needing Sustained Treatment

Gallanis’s third example is a cluster of mechanisms aimed at keeping trust administration and trust disputes out of court—such as nonjudicial settlement agreements and arbitration.

Here, the gap is that these topics “deserve sustained treatment in a new Restatement.” In other words, Gallanis is pointing to a modern set of tools and statutory patterns that increasingly shape administration and disputes, but that are not treated by the Restatement (Third) of Trusts in a way that supplies an organizing framework.

Why These Gaps Matter

Gallanis’s three examples are not random. They illustrate a larger point about what Restatements are supposed to provide: a usable framework for analysis when courts and practitioners confront recurring issues. When prominent modern doctrines are addressed only indirectly, treated only in passing, or omitted altogether, the Restatement cannot fully serve that organizing function.

Series Navigation

• Overview: Why Is There a Push for a New Restatement of Trusts and Estates?
• Previous: Why Law Students Learn Trusts and Estates as One Subject
• Next: What Has Actually Changed in the Law of Wills?

Sources

• Thomas P. Gallanis, Time for a New Restatement, Probate & Property, Vol. 40, No. 1 (Jan./Feb. 2026), available on SSRN:
  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6123049