A testamentary trust is a trust in which trust property is bequeathed or devised by will to a trustee for the benefit of the beneficiaries. The will creating the testamentary trust must show a clear intention to create a trust. The specific identity of the trust property, the beneficiaries, and the trust purposes may be determined from the will, from an existing document incorporated into the will by reference, or from facts which have independent legal significance. Statutes in effect in the various jurisdictions prescribe certain formalities which must be observed in connection with the execution of a will in order to for the will to be valid and eligible to probate. A valid testamentary trust is created only where the will attempting to create it complies with the formalities of the state’s statute of wills. An instrument will be denied probate where it fails to conform at least substantially to the controlling provisions governing the execution of wills. This form is a generic example that may be referred to when preparing such a form for your particular state. It is for illustrative purposes only. Local laws should be consulted to determine any specific requirements for such a form in a particular jurisdiction.
Testamentary Trust of the Residue of an Estate for the Benefit of a Wife with the Trust to Continue for Benefit of Children after the Death of the Wife. Section (Number). Division of Residue I give the residue of my estate to (Name of Trustee), hereinafter called the Trustee, in trust, to be held and administered on the following terms: A. If my Wife survives me, Trustee shall pay the net income from the Trust estate to my Wife until her death. B. Trustee shall have the power in his absolute discretion to pay or apply for my Wife as much of the Trust principal as Trustee deems necessary for her support, care, and health during her lifetime. The discretion of Trustee shall be exercised liberally in favor of my Wife, it being my intention that she shall have, in addition to the necessities, a reasonable number of the luxuries of life. C. On the death of the survivor of my Wife and myself: 1. If there is then a living child of mine under (age) years of age, the Trust shall continue, on the following terms: a. Trustee shall pay to or for my surviving children and the issue of any deceased child of mine, whether such child of mine shall predecease me or die after my death, as much of the Trust income and principal as Trustee, in Trustee's absolute discretion, determines necessary for their support, maintenance, education (including college and professional education), and health. Such payments need not be in equal amounts. Trustee may exclude any one or more of the children and issue. Payments made pursuant to this provision shall not be charged against the distributive share of any person on termination of this Trust. Any income not expended as provided in this Trust shall be accumulated and added to Trust principal. b. This Trust shall terminate on the date when there is no living child of mine under (age) years of age. On such termination, the Trust Property, including accumulated and undisbursed income, shall vest in and be distributed to my then-living children and the issue of any deceased child, per stirpes. 2. If there is then no living child of mine under (age) years of age, the Trust property, including undisbursed income, shall vest in and be distributed to my then-living children and the issue of any deceased child, per stirpes. D. On the termination of the Trust, if there be no living issue of mine, the Trust Property and undistributed accumulated income shall vest in and be distributed to the person or persons who would be my heirs-at-law if I had survived the termination of the Trust, and then died, determined as of the date of termination and according to the laws of (name of state) then in force respecting descent and distribution of Property. Section (Number). SECTION [NUMBER OF SECTION]. PROVISION IF WIFE AND CHILDREN PREDECEASE TESTATOR If neither my [husband/Wife] nor issue of mine survive, I give all my Property to [names of remaindermen and their respective shares if no surviving issue of testator]. Section (Number). Powers of Trustee. Except as otherwise provided, the following provisions shall apply to the Trust under this Will: A. In exercising the discretion granted with respect to the Trust, Trustee may take into consideration other income or other resources known by Trustee to be available to the beneficiary or beneficiaries receiving payments. Trustee may accept as final and conclusive the written statement of the beneficiary receiving payment as to other income or other resources. B. When any beneficiary entitled to receive payments is a minor, or, in the absolute judgment of Trustee, is mentally incompetent (irrespective of whether legally so adjudicated), or is physically disabled, Trustee may, in Trustee's absolute discretion, expend or apply any such payments for the benefit of the beneficiary, or, in case of a minor beneficiary, may make such payments to the parents of the beneficiary, to the person or persons with whom the beneficiary then resides, or to the legal guardian of the beneficiary. C. Income of the Trust estate actually collected but not distributed at the date of the termination of the Trust shall be payable, or credited, as income to the beneficiary or beneficiaries entitled to the next estate or interest in proportion to his, her, or their, respective interests. If, prior to the final distribution of my estate to Trustee, any part of the net income from my estate has been paid by my executor to any person or persons designated to receive any part of the T
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