June 22, 2012

Testamentary Trust

The colloquial phrase "living trust" is used commonly by attorneys and non-attorneys. The correct legal terminology for a living trust is an "inter vivos trust." Inter vivos is Latin for among the living. Now you can express your friends at the next cocktail party when somebody asks about your knowledge of Latin. Trust me, it will happen.

Since death is the natural consequence of life, one might ask if they can create a trust at their death. The answer is yes. A trust created at death is called a "testamentary trust." Since the trust is created at death, a will is the instrument used to create a testamentary trust.

To create a testamentary trust, the following five elements must be present:
  1. The intention to create a trust
  2. Trust property 
  3. A trust beneficiary 
  4. A trust purpose neither illegal nor against public policy  and
  5. A trust purpose that is ascertainable with reasonable certainty
The main reason why testamentary trusts are not as popular as living trusts is because all wills must be probated. Since a principal advantage of a trust is that it exempts trust assets from being probated, a testamentary trust negates this advantage because a will needs to be probated in order for the testamentary trust to come into existence. Hence, testamentary trusts are generally disfavored by most people. 

The following language is excerpted from the will of Joseph Clementi, Jr. that created a type of testamentary trust, a charitable trust. The California Court of Appeal held that the following did in fact create a charitable trust despite the ostensibly incomplete language. Clementi's heirs tried to invalidate the will on the premise that there was no intent to create a trust. The ruling emphasized that charitable trusts are generally favored and courts are reluctant to strike them down, so its validity was upheld on appeal.

Estate of Clementi (2008) 166 CA4th 375

"3. I give the balance of my assets to a charitable foundation or trust in my name to be run by Richard Weisz. If Richard Weisz is not alive when I die, then I appoint his son, Frank Weisz[,] to run my charitable foundation or trust."