Does a trust require that a trustee be nominated in the document? Can a will nominate a trustee of an already established trust? Does the trustee have to be named in both documents (will and trust) if it is part of a testamentary trust? Is it normal for a will to mention the name of a trust (as specific to an individuals name), but include no provisions in the will, and have the trust be a separate document from the will?
The answer to your questions depend on the situation and the language of the documents. Many times, trusts provide for appointment of fiduciaries in a number of different ways. This is often done when there may be contingent beneficiaries, and the grantor deals with that by building in some future flexibility.
A testamentary trust is set up through a Will and it would almost always nominate a trustee. Naming a trustee of a revocable trust in the Will and not in the trust would be very unusual. I cannot recall ever seeing that done, although I suppose it *could* be. Aside from a testamentary trust, a Will and a Trust are always separate documents. The Trustee is normally named in the Trust and the Will, while perhaps making reference to the trustee, does not directly nominate the trustee. Most of the time when there is a revocable trust, there is a special kind of Will used that is referred to as a "pour-over" Will. The purpose of this document is simply to turn over any probate assets to the trustee of the trust. The Will mentions the trust and the trustee, for this reason.
If I have not fully answered your questions, please feel free to post additional details. I will also add that trust documents are relatively complicated estate planning tools and they should not be established without the help of an estate planning attorney.
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I agree with Mr. Frederick's answer. If a trust is established during the grantor's lifetime, it is a separate document and will almost always name a trustee and either name a successor trustee or provide for a procedure to name a successor trustee. If the trust is intended to be the grantor's primary estate planning document, the grantor should also prepare a pour-over will which leaves any of the decedent's probate assets to the trust. This will should identify the specific trust by name and date. A lifetime trust may be funded during the grantor's life or at death. A will could name a successor trustee if the trust document provided that this is a method for appointing a successor trustee, however, this would be very unusual.
If the trust is established at a person 's death, it is called a testamentary trust and is established a part of the decedent's will. In this case, the name of the original trustee and any successor trustees or provisions for selecting successor trustees should be contained within the will. I hope that this helps. If you have additional questions, you may wish to consult with an experienced estate planning attorney.
Mr. Henline is licensed to practice law in the state of Minnesota. He has prcaticed for nearly thirty years and his practice focuses in the areas of trusts, estate planning and probate, real property and small businesses. This does not create an attorney/client relationship. This does not constitue legal advice. The response is intended to provide general legal information. It is limited to facts of the question. You should consult an attorney in the appropriate state involved before making any decisions based on this answer.
In summary-A trust usually names a trustee and most trusts have provisions in case all trustees are deceased or unable to perform duties-then beneficiares can usually vote to appoint new trustee.
It would be unusual for a will (thru probate) nominate a trustee because most trusts are created to avoid the probate court.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
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