[WSBARP] Testamentary Trust

Tue Sep 7 12:03:21 PDT 2021

Jim,

I have never done (or seen) a separate document purporting to restate or implement a testamentary trust. In my mind, the trust is created by the will and its terms are limited to those found in the will and applicable law (which I would not try to state in a document form, I guess, personally).

I would instead create a certification of trust stating the usual terms, maybe the EIN obtained, maybe the probate case number in which the will is filed/probated, and then perhaps attaching as exhibits excerpts of the will that contain the relevant trust language (even including administrative provisions if necessary/helpful). (I might attach the entire will since it’s public record, but if it were preferable NOT to include some portion to make it “harder if not impossible” for someone to get ahold of, then an excerpt would be fine.)

I would be reluctant personally to try to draft a new document that does anything more than certifies the existence of the trust and its terms (per the will, not “new” ones) as described above.

All the best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jim Doran
Sent: Tuesday, September 7, 2021 10:12 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Testamentary Trust

John:

We are no at the point where the testator has died and the Trust terms become effective.  I usually create the now Irrevocable Trust that mirrors the language in the Will.  But the new Irrevocable trust is a stand alone document.

Someone has suggested that I can just use the Will with the Testamentary Trust as the actual Irrevocable Trust.  I am not very comfortable with that.  It seems to me that the new Irrevocable Trust should be its own document.

James

James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>

On Tue, Sep 7, 2021 at 9:57 AM John J. Sullivan <sullaw at comcast.net<mailto:sullaw at comcast.net>> wrote:
Jim:

Most of my wills contain all of the language governing a testamentary credit shelter/bypass or QTIP/Marital trust for a surviving spouse. Same with minor or GST trusts for descendants or SNT’s.

My pour over wills obviously “pour over” into RLTs, which can themselves have the same testamentary trust provisions as my wills.

In the interests of minimizing documents (that sometimes sprout legs and walk away) I try to limit my planning to as few documents as necessary, unless there is a good reason otherwise.

John J. Sullivan
Sent from my iPad

On Sep 7, 2021, at 9:19 AM, Jim Doran <jim at doranlegal.com<mailto:jim at doranlegal.com>> wrote:

I might have to learn something today.  I try not to.

We all know that Testamentary Trusts are contained in a Will by the testator.  The terms of the Trust may be well spelled out or general, depending on how the Will was drafted.  I have been advised that if the Will spells out the terms of the Trust in good detail then that Will with the Testamentary Trust can be used as the Trust itself.

I have always thought that the Will directs the Executor/Personal Representative to set up a Trust to conform with the directions in the Will.  As a result, my practice has been to draft a Trust with the provisions directed by the Will and more of the standard Trust language and have the Executor/Personal Representative, who is now the Grantor/Trustor, set up, execute and fund the newly drafted Trust.

Is this how you learned Trust attorneys do it?  Or can the Will with Testamentary Trust language become the Trust document itself?

James Doran
James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com<mailto:jim at doranlegal.com>
www.doranlegal.com<http://www.doranlegal.com>
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