Home » Wills and Estates » Setting Up a Testamentary Trust Will

Setting Up a Testamentary Trust Will


Setting Up a Testamentary Trust Will

When you are preparing a will, your lawyer may suggest that you consider setting up a testamentary trust will.

Changes to the taxation system, an ageing population and ever-increasing divorce rates have meant traditional estate planning has been revolutionised over the last decade.

Where people used to think no further than creating a simple will, many individuals are now considering more sophisticated estate planning strategies. These strategies carry the benefits of tax minimisation and asset protection.

One estate planning option is to set up a testamentary trust will.


What is a Testamentary Trust Will?

When looking at your estate planning options, you may be advised that a ‘Will with a Testamentary Trust’ is more suited to your family’s financial situation than a ‘Standard Will’.

A standard will is quite a simple document, laying out the will-maker’s chosen executors, beneficiaries and desires for the distribution of their assets after they pass away.

While relatively simple to draw up and execute, a standard will does not offer any protection to the assets of the estate, nor does it provide any tax benefits.

A testamentary trust will is a will that establishes a trust at the time of the will-maker’s death. It is designed to protect the will maker’s property and assets by making the trust the owner of the assets rather than individual beneficiaries.

Setting up your will in this way offers flexibility around the distribution of capital and income that is generated by the trust’s assets.

There are two common types of Testamentary Trusts set up for the above purposes.

The first is a Discretionary Testamentary Trust. In this type of trust, the executor can give the beneficiaries the option of whether they would like to take all of their inheritance via the trust of just part of it.  The primary beneficiary also has the power to remove or appoint trustees. They can also appoint themselves to manage their own inheritance within the bounds of the trust.

The second is a Protective Testamentary Trust. In this setup, the beneficiary must take their inheritance via the trust, and they cannot appoint or remove trustees. This type of trust is a good option where the beneficiary is deemed not in a sound position to manage their inheritance. This may be due to several factors, including being underage, suffering from a disability or having habits that may diminish the assets under the estate.



Benefits Over a Standard Will

There are several benefits to setting up a testamentary trust which differ from a standard will.

Benefits of a testamentary trust include:

  • Asset protection in the event of family law property proceedings or potential bankruptcy of one or more of the beneficiaries.
  • They are flexible in their arrangement and can be modified to suit the changing needs of the beneficiaries.
  • Trusts can be set up to last for 80 years.
  • If set up correctly, trusts can have significant tax advantages.