What is a Testamentary Trust?

A testamentary trust is a dormant trust created in a Will.  It lies dormant until the death of the person creating it springs it to life. 

Unlike a trust that you create and fund during your life, such as a revocable trust or an irrevocable trust, a testamentary trust does not hold any assets until after you die.

Your Will may contain several testamentary trusts for various beneficiaries. For example, you can create a testamentary trust for the benefit of a spouse, children, or a disabled relative. 

Leaving assets in trust for beneficiaries gives you the opportunity to appoint a trusted friend or family member to manage a beneficiary’s inheritance. The trust’s terms provide instructions to the Trustee concerning how and when to distribute trust funds to a beneficiary.

What are the Benefits of a Testamentary Trust

It is always possible to make an outright distribution to a beneficiary; however, testamentary trusts offer multiple benefits:

  1. They allow you to select someone you trust to manage assets for a beneficiary so that funds can be distributed according to your wishes.
  2. They typically contain spendthrift language that prohibits a beneficiary from selling, giving away, or otherwise transferring his or her interest in the trust assets. This provides a beneficiary with asset protection that would not be available with an outright distribution.
  3. They allow you to control who will receive the assets remaining in the trust after the beneficiary dies.

How Long Does a Testamentary Trust Endure?

A testamentary trust can be created to last for a finite number of years or for the lifetime of the beneficiary.

For example, a testator can specify that the trust will terminate after a beneficiary attains a particular age when they would have the maturity and experience to manage those assets. A testamentary trust can also last for the lifetime of the beneficiary.

That doesn’t mean that the beneficiary can never have control of the trust. In fact, you can allow a beneficiary to elect to be a co-trustee or sole trustee when the beneficiary attains a particular age.

Does a Testamentary Trust Avoid Probate?

A testamentary trust in a Will does not avoid probate.  Wills go through probate because probate is the process of validating a Will.

During the probate process, an executor gathers a decedent’s assets, pays off enforceable death, and transfers assets to the decedent’s beneficiaries in accordance with the Will. If you have created a testamentary trust, your executor will fund the trusts you create during probate.

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Rania Combs

Licensed in Texas & North Carolina

Rania graduated magna cum laude from South Texas College of Law Houston. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.