Testamentary Trust Basics

A testamentary trust is a trust that is not created until someone dies. Most times it is created by the person’s will.  So, for example, in your will you might say, “I give all of my property to my child, but if my child is under the age of 26 years then this money shall be held by my brother for him to give to my child as he sees fit for my child’s health and education”.  In this example of a testamentary trust, the trustor is the person whose will is being administered upon their death, the trustee is the brother and the beneficiary of the trust is the child.

Because testamentary trusts are only created after a person dies, it does not avoid probate because the decedent owned the property personally when they died. This is unlike a revocable trust created during life (sometimes referred to as an “inter vivos” or “living” trust), which can avoid probate.

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