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  • Writer's pictureElias Azadzoi

"Simple" vs Testamentary Trust Wills

When it comes to estate planning, it's essential to understand the different options available to ensure your assets are distributed according to your wishes. Two common approaches are the Simple Will and the Testamentary Trust Will.

Selection of Executors and Trustees:

Both the Simple Will and the Testamentary Trust Will require you to appoint executors and trustees who will oversee the administration of your estate. These individuals play a crucial role in ensuring your final wishes are carried out effectively.

Executors are responsible for managing your assets, paying off debts and liabilities, and distributing the remaining estate among the beneficiaries. They have the legal authority to collect assets, file tax returns, and handle legal and financial matters associated with the estate. It is important to choose someone who is trustworthy, organised, and capable of handling the responsibilities of the role.

In a Testamentary Trust Will, in addition to the executor, you also appoint trustees. The trustees are responsible for managing the trust established within the will, following the trust provisions, and making distributions to beneficiaries as specified. They have the duty to safeguard trust assets and ensure they are used for the intended purposes, such as providing ongoing support for beneficiaries or protecting assets from creditors.

Exclusion Clauses:

In both types of wills, it's crucial to clearly identify any exclusion clauses. These clauses specify individuals or entities who should not be included as beneficiaries of your estate. By explicitly stating exclusion clauses, you can prevent potential disputes and ensure your assets are distributed as intended.

Exclusion clauses may be necessary to disinherit individuals who may not have a close relationship with you or who you believe should not receive a share of your estate. Common examples include ex-spouses, estranged family members, or individuals who have acted against your best interests.

When drafting exclusion clauses, it is important to consult with legal professionals to ensure they are clear, legally enforceable, and comply with any applicable laws or regulations.

Identification of Beneficiaries:

Both the Simple Will and the Testamentary Trust Will require you to identify your intended beneficiaries. Beneficiaries are the individuals or organisations who will receive your estate assets. Consider the relationships you have with your loved ones, friends, and charitable organisations. Think about the needs and circumstances of each potential beneficiary when naming them in your will.

It is important to be as specific as possible when identifying beneficiaries to avoid confusion or ambiguity. Clearly state the full names and, if applicable, relationship to you of each beneficiary. Also, consider any contingencies or alternative beneficiaries in case the primary beneficiaries predecease you or are unable to receive their inheritance.

Keep in mind that the inclusion of charitable organisations as beneficiaries can allow you to leave a lasting legacy and support causes that are meaningful to you.

Distribution of Estate Assets:

One key difference between the Simple Will and the Testamentary Trust Will lies in how estate assets are handled. In a Simple Will, assets are distributed directly to the beneficiaries according to your instructions. The executor is responsible for carrying out the distribution process, ensuring that assets are transferred to the beneficiaries as stated in your will.

With a Testamentary Trust Will, the estate assets are owned by the Estate, and payments are made to the beneficiaries as specified in the trust provisions. The trust is established within the Will and comes into effect upon your passing. The trustees manage the trust assets and make distributions to beneficiaries based on the provisions you have outlined in the trust.

The use of a Testamentary Trust allows for added flexibility and control over how assets are distributed. For example, you can specify that the assets are to be distributed in stages or at certain milestones, such as reaching a certain age or achieving specific educational or career goals. This can be especially advantageous if you have concerns about the financial responsibility or maturity of your beneficiaries.

Additionally, a testamentary trust can provide potential tax benefits. The trust structure may help minimise estate taxes, protect assets from creditors, or ensure that assets continue to benefit the beneficiaries even after your passing.

Choosing between a Simple Will and a Testamentary Trust Will depends on your specific circumstances and goals for your estate. The Simple Will offers a straightforward distribution of assets to beneficiaries, while the Testamentary Trust Will offers additional control and benefits through the establishment of a trust.

To make an informed decision, seek guidance from an experienced estate planning attorney who can analyse the complexities of your estate and help you choose the right option. Remember, estate planning is a personal and complex matter, and seeking professional advice ensures that your wishes are carried out effectively. Start planning today to secure the future for your loved ones and achieve peace of mind.


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