testamentary trust

Definition of testamentary trust

Further reading

A testamentary trust (sometimes referred to as a will trust) is a trust which arises upon the death of the testator, and which is specified in his or her will (testamentary trust literally means a trust in a will). A will may contain more than one testamentary trust, and may address all or any portion of the estate.

Testamentary trusts are distinguished from inter vivos trusts, which are created during the settlor's lifetime.

There are four parties involved in a testamentary trust:

• the person who specifies that the trust be created, usually as a part of his or her will, but it may be set up in abeyance during the person's lifetime. This person may be called the grantor or trustor, but is usually referred to as the settlor;
• the trustee, whose duty is to carry out the terms of the will. He or she may be named in the will, or may be appointed by the probate court which handles the will;
• the beneficiary(s), who will receive the benefits of the trust;
• Although not a party to the trust itself, the probate court is a necessary component of the trust's activity. It oversees the trustee's handling of the trust.

A testamentary trust is a legal entity created as specified in a person's will, and is occasioned by the death of that person. It is created to address any estate accumulated during that person's lifetime or generated as a result of the death itself, such as a settlement in a wrongful-death suit, or the proceeds from a life insurance policy held on the settlor. A trust can be created to oversee such assets. A trustee is appointed to direct the trust until a set time when the trust expires, such as when minor beneficiaries reach a specified age or accomplish a deed such as completing a set educational goal or achieving a specified matrimonial status.

For a testamentary trust, as the settlor is deceased, he or she will generally not have any influence over the trustee's exercise of discretion, although in some jurisdictions it is common for the testator to leave a letter of wishes for the trustee.

In practical terms, testamentary trusts tend to be driven more by the needs of the beneficiaries (particularly infant beneficiaries) than by tax considerations, which are the usual considerations in inter vivos trusts.

If a testamentary trust fails, the property will usually be held on resulting trusts for the testator's residuary estate. Many famous English trust law cases were on behalf of the residuary legatees under a will seeking to have testamentary trusts declared void so as to inherit the trust property (the most famous, or infamous, example of which is probably Re Diplock [1941] Ch 253, which resulted in the suicide of one of the trustees who was personally liable to account for trust funds that had been disbursed for what he thought were perfectly valid charitable trusts).