Defining Testamentary Trust
Testamentary trusts are a type of trust that is created in the will of a deceased person. A will may also include more than one testamentary trust.
A person's will may include instructions for the assigned trustee to disperse the person's assets to the beneficiaries named in the trust.
A testamentary trust does not take effect until the settlor dies. Thus, adjustments can be made until the trust becomes irrevocable.
How It Works
Unlike a Living Trust, a Testamentary Trust takes effect after the owner's death. The definition of a Testamentary Trust identifies three primary parties: a grantor, a trustee, and the beneficiary.
The trustee is appointed by the grantor, or the person who establishes the trust, to manage assets before they are distributed to the beneficiary.
Parents commonly utilize these Trusts with small children, with assets dispersed once they reach a specific age, graduate, or marry.
Testamentary Trust vs. Living Trust
In various aspects, a Testamentary Trust differs from a Living Trust, the most notable being that a Testamentary takes effect after the grantor's death, whereas a Living Trust becomes effective immediately.
Another significant distinction between the two types of trusts is that a Will must be created for a Testamentary Trust to take effect. In contrast, a Living Trust is an independent legal entity.
Types of Testamentary Trusts
There are two types of Testamentary Trusts: Separate and Family.
Separate Trusts
Separate Trusts are created for the benefit of a single beneficiary. The trustee has discretion over how and when the assets in the trust are distributed to the beneficiary.
Separate trusts are often used to provide for the financial needs of minor children or persons with disabilities.
Family Trusts
Family Trusts are created for the benefit of multiple beneficiaries. The trustee has discretion over how and when the assets in the trust are distributed to the beneficiaries.
Family trusts are often used to provide for the financial needs of a family during periods of transition, such as divorce, death, or incapacity.
Requirements
The three people involved in a testamentary trust are the grantor or trustor who forms the trust, the trustee who oversees the assets held in the trust, and the beneficiary or beneficiaries designated in the will.
The testamentary trust is a clause in the will that names the estate executor and directs that person to establish the trust. However, because the will must go through the probate procedure, the trust is not instantly constituted following the person's death.
Probate is the legal procedure that certifies the legality of a will and the appointed executor or executrix through a local court.
The trust can be created after the probate procedure is completed and the executor transfers the property into the trust. Until the trust's termination and distribution of the assets to the beneficiary, the designated trustee oversees the trust's assets.
The expiration date of the trust is frequently linked to a specific event, such as the beneficiary attaining a specified age or graduating from college. Until the trust expires, the probate court may conduct periodic checks to verify the trust is appropriately managed.
Anyone can be appointed as a trustee by the trustor. However, the chosen trustee is not required to take on this position and may deny the proposal. If this occurs, the court may appoint a trustee, or a family or friend of the beneficiaries may volunteer to serve as trustee.
Setting One Up
A testamentary trust, which might be more than one, is established as part of a person's final will and testament. It does not go into effect until the settlor passes away.
To establish a testamentary trust, the settlor must first name the trustee and beneficiary and define the assets to be placed in the trust.
The settlor can additionally stipulate when and how the trust will be distributed to the recipient. All of this information should be included in the final will and testament.
The will is probated upon the death of the settlor. Once this is completed, the trust is established, and monies can be distributed. Many testamentary trusts have clauses stating when some or all beneficiaries will receive trust distributions.
In this case, the trustee must appear in probate court annually until the criteria stating that the trust is being managed in line with the will are satisfied.
Advantages
A testamentary trust has several potential advantages:
Asset Protection
One of the primary advantages of a testamentary trust is that it can offer asset protection for the beneficiaries. Because the assets under the trust are not subject to probate, creditors of the estate cannot claim them.
Flexibility
A testamentary trust is a versatile tool that may be utilized to accomplish several goals. A testamentary trust, for example, can be used to provide for a disabled kid or grandchild, pay for a child's education, or manage assets for numerous generations.
Disadvantages
A testamentary trust also has some potential disadvantages:
Probate
One disadvantage of a testamentary trust is that it must go through the probate process. This can be time-consuming and expensive.
Loss of Control
Once a testamentary trust has become irrevocable, no changes can be made to how its assets are managed or distributed.
This can be an issue if the trustee is not competent or trustworthy.
FAQs
1) What is testamentary trust?
It is a trust created as part of a person's will. The trust does not go into effect until the settlor dies, at which point the trustee manages the assets in the trust according to the terms of the will.
2) What are the advantages of a testamentary trust?
A testamentary trust has several potential advantages, including asset protection, control, and flexibility.
3) What are the drawbacks of establishing a testamentary trust?
A testamentary trust also has potential disadvantages, such as the need to go through probate and the loss of control by the settlor.
4) How is a testamentary trust created?
The testamentary trust is constituted in an individual's last will and testament. In the will, the settlor must name the trustee and beneficiary and define the assets to be placed in trust.
5) Who manages a testamentary trust?
The person in charge of a testamentary trust is known as the trustee. The trustee has a fiduciary duty to manage the assets in the trust according to the terms of the will.
