What is a Testamentary Trust and Does It Go Through Probate?

What is a Testamentary Trust and Does It Go Through Probate?

A Testamentary Trust is a trust that is established in accordance with the instructions contained in a last will and testament. The trustee named is responsible for managing and distributing the assets to the beneficiaries as directed in the will. A testamentary trust is a provision in a will that appoints a trustee to manage the assets of the deceased and could be used when the beneficiaries are children or disabled, to ensure professional management of the assets, or to manage the charitable distribution of assets in accordance with the wishes of the deceased.

A testamentary trust usually involves three parties, the individual who creates the trust, the trustee who manages the assets held in trust, and the beneficiaries who are named in the will.

The difference between a living trust and a testamentary trust is that a living trust is revocable, it goes into effect during the creator’s life time and can be changed at any time by the creator. Most importantly, it does not go through probate. However, a testamentary trust is irrevocable and it goes into effect immediately upon the death of the creator.

A testamentary trust is a provision in the will that both names the executor of the estate and instructs that individual to create the trust. After the person's death, the will must go through the probate process to determine its authenticity. The trust then goes into effect, and the executor transfers the property into the testamentary trust. Once a testamentary trust is in place, the trustee manages the assets until the trust expires and the beneficiary receives control of them. The trust's expiration date is usually tied to a specific event and the probate court checks in periodically to ensure that the trust is managed properly, until the trust expires. The creator can choose anyone to act as a trustee. However, the trustee appointed is not obligated to take on this role and may decline the request. If this happens, the court may appoint a trustee, or a relative or a friend of the beneficiaries may act as trustee.

Contact our attorneys at First Class Counsel to find out more about the probate process and how it works.


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Andrew Davis Dec 14, 2021

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