If you have included a testamentary trust in your will, or if you are thinking about doing so, there are some things you should know.
The first thing you should know is that because a testamentary trust is, by nature, created in your will, changing one is not something that is easily accomplished. In other words, be certain of the changes you want to make as it’s not something you can do on a whim.
The next thing you should know is that because of its inclusion in your will, the law requires a great amount of specificity when attempting to execute any changes to its terms. Usually, this specificity requires adherence to the same formalities involved in creating a will. You cannot bypass these formalities and the courts are very strict in enforcing them, so be sure that you are familiar with your state’s specific formalities. If you have any confusion about what is required, it is best to consult an attorney.
These formalities and the strict manner in which the courts enforce them may seem to be an impediment to accomplishing your wishes, but they actually serve a very useful purpose. By strictly adhering to the formalities, a court will have some firm ground upon which to uphold the terms of the will – including the testamentary trust – in the event it is contested.
Finally, you will also need to draft a new will to replace the old one and make an effective revocation of the prior versions.
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