A will trust, also known as a testamentary trust, is a trust that is literally defined by the will and created upon the death of the testator, the person who had the will drafted. Normally, we think of a trust as a living trust, a legal arrangement in which a “grantor,” the person creating the trust, transfers ownership of property to the trust and selects a trustee to manage it. The trustee may be a family member or a trust attorney, and in the case of a living trust, the grantor may also be the trustee. Upon the death of the grantor, the trustee (a successor trustee if the grantor was acting as the trustee) then distributes or manages the property for the beneficiaries named within the trust.
When a testamentary or will trust is created, it is normally done to ensure minor children, or a disabled relative, receives an income. A will trust if often funded by the proceeds of a life insurance policy and other terms are defined within the will or an accompanying letter regarding the wishes of the grantor. While obviously the grantor is now deceased and has no control, a probate court does supervise the trustee during the life of the trust.
While a testamentary trust is a powerful estate planning tool, particularly when it comes to children and those with special needs, it takes away a major advantage of a ‘normal’ living trust, as it does not avoid probate. A will trust is also an irrevocable trust, meaning the terms of the trust cannot be modified or changed.
Testamentary trusts need to coordinate with all aspects of a family’s estate and gift plan. Working with an estate planning attorney experienced in trusts and estates ensures that a testamentary trust, a living trust, or any other type of estate planning tool, will suit your specific needs.
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