A testamentary trust is created by a will. The will itself contains language that creates the trust and since a will does not become effective until death, the trust does not exist until death. Because of this, the assets that will eventually be passed into the trust through the will must first pass through probate.
There is no unnecessary expense to maintain or operate the trust during the estate owner's lifetime since the trust does not become effective until after the estate owner's death. Once established, the trust becomes irrevocable (cannot be changed or terminated).
Typical reasons to use a testamentary trust include:
- Provide flexibility as to property distribution and management;
- To control property for minors, spendthrifts, or incompetent individuals, and
- Provide life estate to one beneficiary with the remaining trust property passing to someone else at the income beneficiary's death.
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