Don’t Want A Living Trust? Create A Will With Testamentary Trusts

As an estate planning attorney, I hear it all the time: “I just want a simple will.” People naturally want to avoid overcomplicating things, especially when it comes to drafting legal documents. Nevermind that the intersection of family and money can be fraught with peril. My situation is simple!

And I want to believe my clients. My number one goal is to provide valuable advice to them. So I try to resist any inclination to be skeptical and instead have faith in my client’s judgment. I provide advice and counsel; at the end of the day, clients decide how they want to proceed.

Recently, I have been solving the challenge of “I don’t want a trust, I just want a will” by drafting wills that include testamentary trusts. A testamentary trust is created by a will that has been submitted to probate that includes creation of a trust. There are a few advantages to this approach.

Firstly, it offers a simplified probate process. In Virginia, properly drafted testamentary trusts allow the fiduciary to avoid the job of assembling and preparing accountings for the Commissioner of Accounts. The time and effort required to produce an accounting can be huge and expensive; in fact preparing accountings is the primary expense of probate. So this is a significant advantage. However, obtaining this outcome requires the beneficiaries and the Trustee to get along. The Trustee must obtain a waiver from each beneficiary each year in order to be exempt from preparing an accounting (VA Code § 64.2-1307). That’s not all that different from a typical revocable trust (inter-vivos vs. testamentary) scenario, we usually give beneficiaries the right to demand accountings. The difference is in a testamentary trust scenario the Trustee has to file an annual waiver with the Commissioner letting the Commissioner know that the beneficiary waived the accounting.

Secondly, a testamentary trust does not require the client to re-title all their assets into the name of the trust during their lifetime. They still need to pay attention to their beneficiary designations and make sure they’re updated, but houses and cars and checking accounts can all stay titled in the client’s naed.. That’s because the trust is created by the will, by testament, rather than during the client’s lifetime (that’s what inter-vivos means, “during lifetime”).

In sum, the advantages to the client of a will with a testamentary trust is the homework is less and many of the same benefits of an inter-vivos trust can be obtained by creating a will with a testamentary trust. And, importantly for some folks, the paperwork is shorter.

Contact an Experienced Virginia Probate and Estate Planning Attorney

Probate can be a complicated, time consuming, and expensive process. Hence, many people who wish to spare their loved ones the cost and burden of probate, and to have their assets distributed to their loved one in a more expeditious manner, take steps to avoid probate.

For more information on the Virginia probate process and what measures you can implement for probate avoidance, schedule a free consultation with Speedwell Law. We focus our practice on Virginia estate planning and trust law.

Contact our law firm at (703) 553-2577 or [email protected].

The information on this site is for general informational purposes only. The information presented in this site is not legal advice or a legal opinion. You should seek the advice of legal counsel of your choice before acting upon any of the information in this site.