Testamentary Trusts Basics

Kendall County Testamentary Trust Attorneys

Sean Robertson and Gateville Law Firm concentrate in estate planning, wills and trusts, the creation of Testamentary Trusts, and powers of attorneys.  A Testamentary Trust is created in a will and becomes active upon the death of the person that created the Will.  A Will is also known as a “Last Will and Testament” because it details a person’s wishes upon their death.  Often, a will creates a testamentary trust upon the death of the decedent.

Yorkville and Oswego Wills and Trusts Attorneys

Unlike a Revocable Living Trust or otherwise known as a “Living Trust”, a Testamentary Trust is effective upon the death of the Will Maker. A Will Maker is the person that created a will, which must be probated through probate court. Probate court is a court process, which is required to probate a will and fulfill the terms of the will. Generally, an Executor is the person or persons that is responsible for execution of the wishes of the Will Maker.

Testamentary Trust vs. Living Trusts

A testamentary trust is a provision contained in a person’s will that creates a trust upon a person’s death or otherwise known as a “Testamentary Trust”. Simply put, a Testamentary Trust is created upon the death of the Testator. A Testator is a person that created a Last Will and Testament, which dictates their wishes upon a death.  Essentially, a Testamentary Trust appoints a Trustee upon the death of the Testator.

Unlike a Testamentary Trust, a Revocable Living Trust is active during a person’s life. Revocable Living Trust is created and effective during a Trust Maker’s lifetime because the Trust Agreement is effective and operating immediately after creation of the Living Trust.

Revocable Living Trust aka Living Trust

A Revocable Living Trust is a revocable and amendable document during the lifetime of the Trust Maker (as long as they have capacity). A Trust Maker is the creator of a Living Trust. A Living Trust is designed for incapacity and death. Unlike a Trustee being named upon a death as a Testamentary Trust, the Trust Maker is often the initial Trustee of the Trust Agreement.

What is a Trust Agreement?

A Trust Agreement is a written document created either upon death or during a person’s lifetime (where a Trust is created).  There are two types of trust agreements. The first type of trust agreement is created during a person’s lifetime or otherwise known as a “Revocable Trust”.

Revocable Living Trust

A Revocable Trust is created by the Trust Maker, which typically names the maker of the Trust as the initial Trustee. A Trustee is the person or entity that is responsible for executing the terms of the Trust Agreement. Simply put, the Trust Agreement is a written document, which outlines the Trust Rules and describes the operating guidelines during a person’s lifetime and upon a person’s death.

Basics about a Trust Agreement

Moreover, a Trust Agreement, which is well-written document, which will summarize and appoint an initial Trustee along with Successor Trustees. A Successor Trustee is a person or persons (or an entity) that will assume their duties upon an incapacity or a death of the Trust Maker.

A Trust Agreement may be created upon a person’s death or during a person’s life.  A Testament Trust Agreement is an agreement, which gets created upon a Will Maker’s death. Unlike a Revocable Living Trust, a Testamentary Trust is created after the Will is probated by the Executor under the terms of the Last Will and Testament. A Trust Agreement outlines the rules that govern the property held in a trust for the trust beneficiaries.

Spendthrift Provision and Protection of Beneficiaries

A Spendthrift Provision is a provision in a Trust Agreement, which protects the beneficiaries of the Trust Agreement from the creditors of the trust’s beneficiaries. The creditor protection of a spendthrift provision of a Trust Agreement protects the creditors of beneficiaries such as a divorcing spouse or a creditor of a beneficiary of a trust.  Spendthrift protection is unavailable in wills and it is a benefit of a Trust, whether testamentary or living trust.

Testamentary trust are irrevocable trusts, which means that the terms of the trust may not be altered or amended. Unlike a Testamentary Trust, a Revocable Living Trust is a Revocable Trust, which means that the terms of the Trust Agreement may be amended or changed.

Unlike a Testamentary Trust, a Revocable Living Trust is designed to avoid probate court. Avoiding probate court minimizes estate conflicts and costs. Typically, a testamentary trust requires a federal tax identification number unlike a Revocable Living Trust. Most Trust Makers of a Revocable Living Trust will use a social security number because the Revocable Living Trust may be revoked or altered prior to death or an incapacity.

Kendall County Probate and Estate Lawyers Serving Yorkville, Plano, Plainfield, Joliet and Oswego

Letters of Office and Probate Court

Letters of Office are issued through probate court in Kendall County and nearby counties in the State of Illinois. Letters of Office is an official certified document appointing an Executor or an Administrator (or Independent Administrator) as the official court-appointed representative of a probate estate that is opened. Thus, a letter of office is acquired after opening of the probate estate and appointment of the representative and admittance of the Will through probate court in Yorkville and Kendall County.

Experienced and Skilled Probate and Estate Lawyers in Kendall County, Illinois

Sean Robertson and Gateville Law Firm are skilled and experienced estates and trust lawyers serving Kendall County such as the following places:

  • - Plainfield
  • - Joliet
  • - Yorkville
  • - Oswego
  • - Bristol
  • - Newark
  • - Boulder Hill
  • - Montgomery
  • - Aurora
  • - Minooka

The Attorneys and Staff of Gateville Law Firm provide skilled and responsive legal representation to proposed Executors, Administrators, families, and individuals that desire effective and skilled legal representation with regards to the following estate planning matters:

  • - Creation of Last Wills and Testament
  • - Drafting of Revocable Living Trust
  • - Wills with Testamentary Trust
  • - Powers of Attorneys for Property and Healthcare
  • - Special Needs Estate Planning
  • - Guardianship Appointments
  • - Probate Proceedings
  • - Asset Protection



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