Trusts can be created either during or after your lifetime. Trusts that are created after your lifetime are called testamentary trusts because they are established in your “last will and testament.” The trust is described in the will and all of the terms are often found in the will. In other situations, a testamentary trust can sometimes be created by referring to another document that actually creates the trust.
Like living trusts, testamentary trusts are overseen by a trustee and have specified beneficiaries. The trustee is bound by the terms of the trust and will distribute funds or property according to your specific instructions. This type of trust is often used by someone who is expecting a large life insurance payment or for those who have minor or disabled children.
Advantages of a Testamentary Trust
A testamentary trust is an often-used estate planning tool because of the many advantages that it offers.
- Control over funding: One of the major reasons that individuals use a testamentary trust is because they want more control over how their loved ones will use their inheritance. For example, if you have a child that has poor spending habits, you can use the trust as a way to ensure that he or she will not squander their inheritance. In the case of a disabled child, a testamentary trust allows you to provide financial security for your child with someone else who you can trust to actually control the funds.
- Tax advantages: In some cases, a testamentary trust can allow you to avoid estate taxes. It can also have certain tax benefits for the beneficiaries as well.
- Simplicity: Developing a testamentary trust is relatively easy to do. It can be a part of your will, so it is easy to incorporate the trust into a will while you are creating the will or as a later addition. Extra costs or fees are then often taken out of the trust itself, so there are little upfront costs.
One of the most beneficial aspects of a testamentary trust is that it can be completely tailored to your needs. It is extremely flexible and can be as simple or complex as you would like. It fits well with the unique needs of those who have special needs children.
Disadvantages of a Testamentary Trust
The disadvantages of a testamentary trust are few and far between, but there are a few cons that you should consider before creating a testamentary trust.
- Costs related to maintenance: Although you will not pay the majority of the costs upfront, there are costs that you will need to consider for the sake of the beneficiaries and the trustee. For example, the trustee may be required to regularly report the trust assets or appear in court to make regular reportings. Legal fees for maintenance are also a factor that you may need to consider, depending on the complexity of the trust.
- Problems with trustees: In a testamentary trust, the designated trustee has the option to turn down the role. That can mean that the probate court will name someone else to be the trustee. The trustee could end up being a complete stranger in some cases. It is important to discuss your plans with your prospective trustee to avoid this type of situation.
There may be other drawbacks to a testamentary trust that vary depending on your particular situation as well. Find out more by calling The Matus Law Group at (732) 281-0060.