What is a Testamentary Trust?

Literally, a testamentary trust is a trust in a will. A testamentary trust is also referred to as a will trust and is a trust that arises upon the death of the testator, who is specified in the will. A will may contain more than one testamentary trust and may address all or any portion of the testator’s estate.
Testamentary trusts are distinguished from inter vivos trusts, the revocable trusts created during the testator’s lifetime.
There are four parties involved in a testamentary trust:

  • The testator or donor who specifies that the trust be created, usually as a part of the will that can be set up in abeyance during the testator’s lifetime. The testator may be called the grantor or trustor, but is usually referred to as the settlor.
  • The trustee is responsible to carry out the terms of the will. The trustee may be named in the will, or may be appointed by the probate court, which oversees the administration of the will.
  • The beneficiary or beneficiaries are those persons who will receive the benefits of the trust.
  • Although not a party to the trust itself, the probate court is a necessary component of the trust’s activity. The probate court oversees the trustee’s handling of the trust.

A testamentary trust is a legal entity created as specified in a person’s will. The testamentary trust is occasioned by the death of the testator. The testamentary trust is created to address any estate accumulated during the testator’s lifetime or created as a result of the settlor’s death, such as in a wrongful-death or from the proceeds of a life insurance policy. A testamentary trust can be created to oversee these assets.

A trustee is appointed to direct the trust until a set time when the trust expires. Examples of this expiration can occur when minor beneficiaries reach specified ages or accomplish a deed such as completing an educational goal or achieving a specified matrimonial status.

In a testamentary trust, the settlor is deceased and will not have any influence over the trustee’s exercise of discretion. In some jurisdictions, it is common for the testator to leave a letter of wishes for the trustee to consider.

In practical terms, testamentary trusts tend to be driven more by the needs of the beneficiaries, particularly infant beneficiaries, than by tax considerations, which are the usual considerations in inter vivos trusts.

If a testamentary trust fails, the property will usually be held in resulting trusts for the testator’s residuary estate. Many famous English trust law cases involved the residuary legatees under a will seeking to have testamentary trusts declared void so as to inherit the trust property. The most famous, or infamous, of these cases is Re Diplock [1941] Ch 253, which resulted in the suicide of one of the trustees who was personally liable to account for trust funds that had been disbursed to trusts the trustee thought were valid charitable trusts.

Advantages of a Testamentary Trust

  • A testamentary trust provides a means for assets assigned to minor children to be protected until the children are capable of managing the assets.
  • A testamentary trust has low upfront costs, usually only the cost of preparing the will to address the trust, and the fees involved in dealing with the judicial system during probate.

Disadvantages of a Testamentary Trust

  • The trustee is required to meet with the probate court regularly (at least annually in many jurisdictions) and prove that the trust is being handled in a responsible manner and in strict accordance with provisions of the will, which created the trust. The administration of the trust may involve considerable legal fees, especially if the trust endures for several years or involves a sophisticated financial or investment structure, and always involves the fees imposed by the judicial system. These fees and expenses are deducted from the principal of the estate.
  • The trustee must be prepared to oversee the trust for its duration, which can involve a considerable length of time. The trustee may also encounter possible emotional attachment and legal liability.
  • A candidate to serve as a trustee may be named in the will but that person has no legal obligation to accept the appointment. If no trustee is named in the will or if no trustee is available, the probate court will appoint a trustee.
  • It can be difficult for beneficiaries to bring a dishonest trustee to account. Thew beneficiaries can sue or may rely on the probate court’s review to unveil the malfeasance, but such remedies are slow, time-consuming, expensive and are not guaranteed to succeed.

Due to the potential problems, lawyers often advise that a revocable living will or inter vivos trust be created instead of a testamentary trust. However, a testamentary trust may be a better solution if the expected estate is small as compared to potential life-insurance settlement amounts.