As of early 2026, scholars and the American Law Institute (ALI) are giving serious consideration to whether a new Restatement of trusts — and possibly of the broader law of donative transfers — is needed. That consideration has been prompted by changes in trust law practice and statutory developments that are not fully addressed in existing Restatements.
What Is Driving the Push for a New Restatement?
Several developments in trust law have accelerated since the publication of the Restatement (Third) of Trusts (2003–2012):
- Statutory authorization of directed trusts in most U.S. jurisdictions
- Widespread adoption of trust decanting statutes
- Increased reliance on nonjudicial settlement agreements
- Growing use of arbitration and other non-court dispute resolution mechanisms
These developments are increasingly prominent in modern trust practice, yet they receive limited or no sustained treatment in the current Restatement.
A fuller discussion of why this gap has become more pressing appears in the first post in this series:
Why Scope Matters
A central question is whether the ALI should:
- Prepare a new Restatement limited to trust law, or
- Undertake a unified Restatement covering trusts, wills, and other donative transfers
Modern legal education and practice generally treat trusts and estates as a single, integrated field. That reality has prompted renewed discussion about whether the Restatement structure should reflect how the subject is taught and practiced today.
For historical and pedagogical context, see:
- Why Trusts and Estates Became a Single Field
- Why Law Students Learn Trusts and Estates as One Subject
Why This Matters
Restatements influence:
- Judicial reasoning
- Legal education
- Practitioner expectations
When Restatements lag behind statutory and practical developments, courts and lawyers may lack a shared analytical framework for addressing recurring issues in modern practice.
For posts that explore these issues in more detail, see the series navigation below.
Series Navigation
This post is the overview for the series Rethinking the Restatements of Trusts and Estates. The posts in the series are intended to be read in order.
- Time for a New Restatement? Why the Question Has Become Urgent
- Why Trusts and Estates Became a Single Field
- What Restatements Are Supposed to Do—and When They Fail
- Why Law Students Learn Trusts and Estates as One Subject
- Modern Trust Practice and the Restatement’s Blind Spots
- What Has Actually Changed in the Law of Wills?
- One Restatement or Two? The Structural Question
- Advocating Without Overreaching: A Model of Intellectual Restraint
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
Hani Sarji
New York lawyer who cares about people, is fascinated by technology, and is writing his next book, Estate of Confusion: New York.
Leave a Comment