How to ensure the creation of only one testamentary trust only when both spouses pass away?
Important - In cases where couples prefer to have a single trust with terms controlling the payout of their assets, one effective strategy is to establish a living trust or standby trust (instead of relying on a Testamentary Trust). Living trust or standby trust can also receive assets from each spouse's Will and come into play even before the death of either spouse, such as in cases of mental incapacity.
This article applies where you intend for a single testamentary trust to be established only upon the death of both spouses, including circumstances where both spouses pass away simultaneously or within 30 days of each other.
If you wish to establish just one testamentary trust upon the death of either spouse, or of both, regardless of the sequence, please refer instead to this article.
To ensure only one Testamentary Trust is created when both spouses pass away together, their Wills should have slightly different wording. This ensures that one of the spouse inherits assets from the other, and their combined assets go into the Testamentary Trust for that spouse.
If both spouses use identical wording in their wills, it can lead to the creation of two separate trusts and unintended duplicated payouts.
Here's an example for spouses who in their Will intend to give each other 100% of their assets upon death but want the assets to go into a Testamentary Trust should both of them pass away simultaneously (or within 30 days of each other).
In this example, should both spouse A and B die within 30 days of each other, spouse A's asset will be given to spouse B to be distributed based on spouse B's Will. However, the assets will be distributed to the spouse who outlives the other by at least 30 days, and eventually to the Testamentary Trust of this spouse.
Spouse A's Will (e.g. Wife, Jane Doe's Will)
In the "Appoint People" tab, add and configure the Testamentary Trust accordingly.
- In the "Allocate Assets" tab, go to Allocate Residual Assets and give 100% to spouse (e.g. Husband). There should be nothing allocated to the Testamentary Trust anywhere else.
- Under "Select Clauses" tab, toggle on Other Instruction and key in the condition accordingly e.g.:
- - - - -
Redistribution of My Estate
For the purposes of this section, “my Spouse” refers to my {Relationship}, {Name}, {Identification Number/Details}.
If I die before my Spouse and my Spouse survives me by at least 30 days, the share of my estate which my Spouse would otherwise be entitled to receive under this Will shall still be given to him/her.
If my Spouse dies before me and I survive my Spouse by at least 30 days, the share of my estate which my Spouse would otherwise be entitled to receive under this Will shall be redistributed to My Testamentary Trust - {TRUST NAME} Trust. Any assets that I may have inherited or may inherit from my Spouse shall also be distributed to My Testamentary Trust - {TRUST NAME} Trust.
If my Spouse and I die within 30 days of each other, the share of my estate which my Spouse would otherwise be entitled to receive under this Will shall still be given to him/her, contributing to his/her estate and be distributed according to his/her Will.
It is the intention of my Spouse and me that only a single testamentary trust be established for the benefit of our child(ren), and that such trust shall take effect only after both of us have died.
Spouse B's Will (e.g. Husband, Joe Doe's Will)
In the "Appoint People" tab, add and configure the Testamentary Trust accordingly.
- In the "Allocate Assets" tab, go to Allocate Residual Assets and give 100% to spouse (e.g. Wife). There should be nothing allocated to the Testamentary Trust anywhere else.
- Under "Select Clauses" tab, toggle on Other Instruction and key in the condition accordingly e.g.:
- - - - -
Redistribution of My Estate
For the purposes of this section, “my Spouse” refers to my {Relationship}, {Name}, {Identification Number/Details}.
If I die before my Spouse and my Spouse survives me by at least 30 days, the share of my estate which my Spouse would otherwise be entitled to receive under this Will shall still be given to him/her.
If my Spouse dies before me and I survive my Spouse by at least 30 days, the share of my estate which my Spouse would otherwise be entitled to receive under this Will shall be redistributed to My Testamentary Trust - {TRUST NAME} Trust. Any assets that I may have inherited or may inherit from my Spouse shall also be distributed to My Testamentary Trust - {TRUST NAME} Trust.
If my Spouse and I die within 30 days of each other, the share of my estate which my Spouse would otherwise be entitled to receive under this Will shall be redistributed to My Testamentary Trust - {TRUST NAME} Trust. Any assets that I have inherited or will inherit from my Spouse shall also be distributed to My Testamentary Trust - {TRUST NAME} Trust.
It is the intention of my Spouse and me that only a single testamentary trust be established for the benefit of our child(ren), and that such trust shall take effect only after both of us have died.
It is important to take note that any of the spouse can still subsequently make a new Will with different allocations and different terms for their Testamentary Trust which can eventually affect the outcome of what both couple has originally intended.
There exists Joint Wills / Mutual Wills that are made between a few parties (e.g. couples) in such a way that each party can no longer change or revoke their own Will without the consent of the other party. Joint Wills / Mutual Wills can also ensure the creation of only one Testamentary Trust when both spouses pass away simultaneously.
However, getArrange.com explicitly DOES NOT provide Joint Wills / Mutual Wills due to the various possible complications down the line. There are also a number of law firms who explicitly do NOT provide such services for similar reasons.