Also known as: trusts under will · trust under a will · trusts under wills · testamentary trust
Written by attorneys · grounded in primary & secondary sources — see below
Property devised by will to an existing trust is administered and disposed of under that trust's governing instrument rather than under a separate testamentary trust of the testator unless the will provides otherwise.
Thomas Thompson's will devises his brokerage accounts to the trustee of an inter vivos trust he created years earlier with his daughter as beneficiary. After his death the executor transfers the accounts directly into the existing trust. The daughter receives distributions under the trust's original terms as amended before Thomas died rather than under any new testamentary trust created by the will.
Tiana Tan's will pours her residuary estate into a trust she established during life naming First Western Bank as trustee. After the estate is funded the bank sells trust assets without obtaining required consents from remainder beneficiaries. The beneficiaries sue the bank for breach of fiduciary duty arising from its post-funding management of the trust assets.
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No. Unless the will states otherwise the devised property becomes part of the existing trust and is administered under that trust's governing instrument including any amendments made before or after the testator's death.
Supporting sources
Unless the will provides otherwise the devise lapses when the trust is revoked or terminated before the testator's death.
Supporting sources
A trust under will is created by the will itself and takes effect only at death while an inter vivos trust is created and funded during the settlor's lifetime. A pour-over devise from a will simply adds assets to an existing inter vivos trust without creating a separate testamentary trust.
Supporting sources
…Corporation. Thirty-two percent of the stock interest in Scarborough properties was held in various family trusts, 11% in a testamentary trust created by a Mr. Vanderlip and 21% in inter vivos trusts set up by Mrs. Vanderlip. Dudley Schoales was one of the trustees of the inter vivos trusts. The Court of Appeals in its…