What is a Testamentary Trust?

A testamentary trust is a trust created in your Will that lies dormant until the death of the testator (the person creating the Will) springs it to life.

Unlike a trust created and funded during one’s lifetime, such as a revocable living trust or an irrevocable trust, no assets will be transferred into the testamentary trust until the testator dies.

A will may contain several testamentary trusts for various beneficiaries. For example, a testamentary trust can be created for the benefit of a spouse, for children, or for a disabled relative.

Leaving assets in trust for beneficiaries allows a testator to direct how and when trust funds should be distributed to the beneficiary and control how assets remaining in the trust will be disposed of after the beneficiary’s death.

For example, suppose you have minor children or children who are spendthrifts. Your will or trust can specify that all assets left to your children will not be distributed outright but rather held in trust for their benefit by trustee you choose to manage those assets and make distributions based on guidelines you have set.

Testamentary trusts offer multiple benefits.

They allow you to select someone you trust to manage assets for the beneficiary so that funds can be distributed according to your wishes.

Additionally, testamentary trusts typically contain spendthrift language in them that prohibits the beneficiary from selling, giving away or otherwise transferring his or her interest in the trust assets, and prevents the beneficiary’s creditors from reaching the beneficiary’s interest in the trust. This provides the beneficiary with assets protection that they would not get with an outright distribution.

A testamentary trust can be created to last for a finite number of years, or indefinitely.

For example, a testator can specify that assets in the trust should be distributed outright to the beneficiary after the beneficiary attains a particular age when they would have the maturity to manage those assets.

A testamentary trust can also last indefinitely and direct that the beneficiary can elect to take control of the funds as trustee when the beneficiary attains a particular age.

A testamentary trust will not avoid probate. Rather, probate will be necessary to transfer assets belonging to the testator to the trust after the testator dies.

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