Also known as: testamentary trust · will-created trust
Written by attorneys — see sources below.
A trust created by a will that takes effect upon the testator's death. The trust must satisfy the formalities required for a valid will and is administered under court supervision as part of the probate process.
Donor died leaving a will that created Trust A and Trust B. Trust A paid income to Donee for life with remainder as appointed by Donee or added to Trust B. Both trusts were administered under court supervision as part of the probate process.
Theresa Tucker creates a testamentary trust in her will that pays income to her two adult children for life with remainder to their descendants. After her death the children petition the probate court to terminate the trust and distribute the corpus immediately. The court denies the petition because the trust's purpose of providing successive interests remains unfulfilled.
Andrew J. Brown died in 1977. He settled his entire estate in a trust held by the trustee under specific terms. The trust instrument directed that the trust be used to provide an education for the children of his nephew Woolson S. Brown. The trustee was authorized to use income and necessary principal for that purpose until the last child received an education and the trustee determined the purpose accomplished. Thereafter, the income and necessary principal were to be used for the care, maintenance, and welfare of Woolson S. Brown and his wife Rosemary Brown. They were to live in their accustomed style and manner for the rest of their lives. Any remainder upon their deaths was to be paid to their then living children in equal shares. The trustee carried out the educational provisions. After determining that the children's education was completed, the trustee began distributing trust income to the lifetime beneficiaries Woolson and Rosemary Brown. On June 17, 1983, Woolson and Rosemary Brown petitioned the probate court to terminate the trust. They argued that distribution of the remaining assets was necessary to maintain their lifestyle. Their children as remaindermen filed consents to the termination. The probate court denied the petition. The petitioners appealed to the Washington Superior Court. The superior court reversed the probate court's denial. It concluded that the educational purpose had been accomplished and that the trust could therefore be terminated. The trustee appealed that decision to the Supreme Court of Vermont. The superior court had found that Rosemary Brown was incapable of having more children and that the possibility of Woolson Brown fathering more children was remote.
View caseA testamentary trust is created by a will and arises only at the testator's death. An inter vivos trust is created and funded during the settlor's lifetime and generally avoids probate.
Yes. Because the trust is created by will, the will itself must be executed with the required formalities of writing, signature, and witnesses.
The probate court generally supervises the trustee's accounting and performance because the trust is created as part of the probate process.
Under the Uniform Probate Code the poured-over property becomes part of the existing trust and is administered under its terms rather than as a separate testamentary trust.
…the life beneficiary of three quarters of his estate, for whose comfort, support and anticipated increased medical expenses the testamentary trusts were evidently created. Testimony by petitioner’s investment manager, and by the objectants’ experts, disclosed that the annual yield on Kodak stock in 1973 was approximately 1.06%, and…