Download the Trust Will form and save it to disk: Trust Will form
The form is published in unprotected Word format, so it can be added to, modified, or subtracted from as you desire — you have complete control over its content. The type in black color represents the basic text, which should remain as it is and not be modified unless you are confident of your ability to do so and to obtain the result that you intend. The type in red color represents the fill-in sections, that, here, have been filled in for a hypothetical testator, George Washington. You will need to go to every red colored entry in the form, delete the red text, change the color to black, and fill-in the section with the text that you desire for your Will. The type in blue color represents what is known as “hidden type.” These are instructions that are inserted into the form and are readable on your computer screen, but that are ignored and do not show upon printing. To illustrate this, click on File > Print Preview or on the Print Preview button on your Toolbar, and you will see what the form would look like if you printed it right now:
From here on, the “Change the color” instruction will be omitted, but make sure that after you make whatever change you desire, if the color of the type is red, then change it to black, so that upon your completion of the Will, it contains no red type.
Possibility #1: I am not now married, but since approximately January 1, 2000, I have been living with Sam Adams, who I consider to be my husband, and all references to “my spouse” in this Will are to him. Possibility #2: I am not now married, but since approximately January 1, 2000, I have been living with Sam Adams, who I consider to be my life partner, and all references to “my partner” in this Will are to him.
Note: If you choose to use the “my partner” language like the above, make sure that you go through the Will form, find every reference to “my spouse,” and change it to “my partner.”
Possibility #3: I am married to but living amicably separate and apart from Martha Washington due to our working at distant locations, and all references to “my spouse” in this Will are to her. Possibility #4: I am married to but living separate and apart from Martha Washington due to marital discord. For all purposes of this Will including that of heirship, Martha Washington shall be considered to have predeceased me.
Note: So long as you and Martha remain married, she is entitled to her one-half interest in your and her community property, but the “For all purposes of this Will …” clause should allow you to decrease the likelihood of her becoming a distributee of your estate, if that is what you desire. Possibility #5: I am married to Martha Washington, but on [date] I filed a Petition for Dissolution of Marriage in King County, Washington, Superior Court, Case No. [xxx], which remains to be heard. For all purposes of this Will including that of heirship, Martha Washington shall be considered to have predeceased me.
Possibility #6: I am married to Martha Washington, and all references to “my spouse” in this Will are to her. I have two children of a prior marriage, and their names and birthdates are: Robert Washington, born January 1, 1990 Susan Washington, born February 28, 1992 both of whom are now living. I have no deceased children or children of my current marriage. Possibility #7: I am married to Martha Washington, and all references to “my spouse” in this Will are to her. I have two children of a prior marriage: Robert Washington, born January 1, 1990 Susan Washington, born February 28, 1992 both of whom are now living. I have one child of my current marriage: James Washington, born March 15, 1998 who is now living. I have no deceased children.
Possibility #8: I am married to Martha Washington, and all references to “my spouse” in this Will are to her. I have two children of a prior marriage: Robert Washington, born January 1, 1990 Susan Washington, born February 28, 1992 both of whom are now living. I have one child of my current marriage: James Washington, born March 15, 1998 who is now living. I have no deceased children. Martha Washington has one child of a prior marriage: Sarah Smith, born March 15, 1988 who is now living. For all purposes of this Will including that of heirship, “my children” shall be considered to be the class of persons consisting of Robert Washington, Susan Washington, James Washington, and Sarah Smith.
Note: Possibility #8 represents the truly “blended family,” in which the Testator for purposes of his Will is making “his children” to be:
- The children of his prior marriage, plus
- The child of his present marriage, plus
- The child of his wife’s prior marriage.
Presumably, his current wife, Martha Washington, would have a reciprocal provision in her Will, making “her children” to be:
- The child of her prior marriage, plus
- The child of her present marriage, plus
- The children of her husband’s prior marriage.
Of course, there is no legal obligation for either George or Martha to include the child or children of their spouse’s prior marriage as their own for purposes of their respective Will, and presumably they would only do so following serious consideration and mutual communication.
Possibility #9: I have never been married and have no issue. My parents are: John & Mary Washington 1600 Pennsylvania Avenue Washington, D.C. both of whom are now living. Possibility #10: I have never been married, I have no issue, and both of my parents are deceased. My siblings are: David Washington 1234 Palm Street Los Angeles, CA & Elizabeth Fitzgerald 4321 Apple Street New York, New York both of whom are now living. Possibility #11: I am not now married, I have no living issue, and both of my parents are deceased. My siblings are: David Washington 1234 Palm Street Los Angeles, CA & Elizabeth Fitzgerald c/o Harold Fitzgerald 4321 Apple Street New York, New York David is now living. Elizabeth is deceased leaving now living issue, who may be contacted through her surviving husband, Harold Fitzgerald, at the foregoing address.
Note: The reference in the first sentence of Possibility #11 to “no living issue” indicates that the Testator has had children, but they are now all deceased leaving no living issue. Otherwise, he would have said “I have no issue,” indicating that he has never had any children.
Gifts of specific, named items in one’s estate are known as “specific gifts” (if of personal property: “specific bequests”; if of real property: “specific devises”). Making specific gifts, as opposed to leaving the property in the residue of one’s estate, has two primary purposes:
Consequently, one way to increase your chances that a beneficiary will actually receive any asset you wish that beneficiary to receive and without its being diminished or exhausted is to make that asset the subject of a specific gift. Here, by making a specific gift of your real property, and most likely of your home, to your spouse, you are in effect saying that it is more important to you that your real property pass to your spouse than your residuary property passing to your residuary beneficiaries. If you have any other property that is of primary importance to you that it pass to your desired beneficiary, you may wish to consider making such property the subject of a specific gift.
If you desire to make any gifts of money, either directly (through the actual payment of money) or indirectly (through the forgiveness of debt), this is the place to do it. As you might imagine, pecuniary gifts share the same features as specific gifts, in that they are both:
Consequently, the more property you give by either specific or pecuniary gifts, the more financial burden you place on the residue of your estate, and on your residuary beneficiaries, for such payment. You can’t create property or lessen the absolute amount of your debts, expenses, taxes, etc. by this procedure — you can only shelter some of your assets from this burden and by doing so shift the burden onto the remaining assets in your estate and their beneficiaries.
This is the “everything that’s left after the distribution of all my specific and pecuniary gifts and the payment of all my debts, expenses, taxes, etc. I want to give to …” clause. As you might imagine, there are about as many ways of making this gift as there are testators. You have chosen to prepare a Trust Will, one containing a trust. Chances are that you have decided to do so because you have children for whom you believe it would be in their best interests to have a third party, a Trustee, hold and manage for them some of your property that they may receive from you following your death. This website will assume that the beneficiaries of your intended trust(s) will be your children, but they could just as easily be:
if you believe it would be in that person’s best interests to have another hold and manage property for them, perhaps because of young or old age, physical or mental disability, lack of desire or experience in managing property, or shear irresponsibility. The relevant residuary gift clauses shown on the Trust Will form are:
| Providing for Charities and Other Institutions in One’s Will: A remarkably persistent and continuing problem your author faced in both his estate planning and probate practice was dealing with the gap between a testator’s intentions in the making of a gift to charity and the likelihood of that intended charity’s eventual receipt of the testator’s gift. Specifically, in the estate planning area, many testators had only a vague notion of the actual name of their intended charity. If it was, for example, the Salvation Army, is it its national organization? or the state organization? or the local branch? or for some specific program sponsored by some Salvation Army branch somewhere? or what? And in the probate area, many decedents provided only the barest description of their intended charity, leaving their Personal Representative and the Court (and charities coming out of the woodwork) to ponder just who should receive the gift. This is the natural making of a lawsuit, to resolve the ambiguity. Moral of the story: If you provide for a charity or other organization in your Will, before doing so, please contact an officer of the organization, obtain its correct legal name, and use that name in your Will (along with any specific purpose for which you wish the organization to use your gift, unless you wish the organization simply to add your gift to its general fund). |
The primary purpose of this clause is to ensure that in the improbable case in which none of your individual beneficiaries or heirs survives you, your property will not pass to the state (ie, “escheat”) but, instead, will go to a charity or other institution of your choice. Consequently, you should select as your catastrophic beneficiary one in which you have confidence of its longevity — that it will continue on and be there “no matter what.”
Since you have already decided to use a trust Will to deal with the problem of passing property to your minor children, this clause would become effective only in case property would be passed to your other heirs. Its primary purpose is to lessen the chances that a guardianship will need to be created if any gift passes to a minor heir. Note that one effect of this clause is to extend the period of minority from 18 to 21 years. If you wish to continue to use the legal age of minority instead of the three-year extension to 21 as this clause provides, you should reduce the provision of “21 years” to “18 years.” Also note that, as indicated above, under Washington law, this method of avoiding the creation of a guardianship cannot be extended past 21 years (past 25 years for transfers made on or after July 1, 2007).
Translation: If your Personal Representative distributes any residuary property to your Trustee, your Trustee will:
Translation: Your Trustee will hold and administer each Trust and distribute its assets to its Beneficiary as specified in this section of your Will.
Translation: Each Beneficiary has the right to receive from his/her Trust:
Translation: Each beneficiary also has the right to withdraw from his/her Trust:
So, for example, if a Beneficiary is 32 upon the creation of his/her Trust, the Beneficiary is then entitled to withdraw 2/3 of its principal (the 1/3 the Beneficiary would have been entitled to withdraw at age 25 + the 1/2 of the remaining 2/3 the Beneficiary would have been entitled to withdraw at age 30). Providing a right of withdrawal over Trust principal (as opposed to providing for its automatic distribution) empowers the Beneficiary to decide what is in his/her best interest and to allow, if he/she believes it would be best, for the property subject to withdrawal to remain in the Trust and be managed and invested by its Trustee. If the Trustee is unwilling to continue holding such property, the Trustee may distribute it to the Beneficiary at any time; see the last sentence in the Right to Terminate paragraph of the following section, entitled “Trustees.” If you wish to provide for a right of withdrawal of 1/2 of the principal at each of ages 25 and thirty, see the alternative Trust Will form provision “Principal in Halves at Ages 25 & 30.”
Translation: At or following age 21, the Beneficiary has the right to direct the disposition of some or all of the assets of his/her Trust as follows:
Translation: If the Beneficiary dies before his/her Trust is exhausted and does not direct all of the assets of the Trust to others as above, then the Trustee will divide whatever remains of the Trust into shares upon the principle of representation for:
If any resulting beneficiary arising out of that division is also a Beneficiary of a Trust that the Trustee is then holding, the Trustee will add that beneficiary’s share to his/her existing Trust. If any resulting beneficiary is not a Beneficiary of a Trust that the Trustee is then holding, the Trustee will create a new Trust for that beneficiary and administer and make distributions from it to that beneficiary the same as with all the other Trusts.
Translation: At any time at which a distribution may be made from a Trust to its Beneficiary, the Trustee may withhold that distribution if the Beneficiary is:
During any such period of postponement, the Trustee retains the ability to use assets of the Trust in its discretion for the Beneficiary’s supplementary care, health, education, maintenance, or support in addition to any benefit the Beneficiary may be receiving, for example, from a governmental agency such as SSI.
Translation: The Trustee may accelerate distributions of principal from a Trust to its Beneficiary if the Beneficiary is able to responsibly handle the early distribution. If you wish to provide for only postponement or only acceleration of distributions, but not for both, see the alternative Trust Will form provisions “1. Postponement Only, or 2. Acceleration Only.”
Translation: The Trustee is required to exercise its discretion to terminate postponement of, or to accelerate, distributions based on the Beneficiary’s actual circumstances, and not just because of the Beneficiary’s desires.
Translation: Similar to the “Catastrophe Clause” above regarding your residuary gift, this clause effectively advances the Catastrophe Clause to a time in the future in which the last of your issue has died leaving assets remaining in his/her Trust. In that remote case, those assets are to be distributed to a charity or other institution of your choice.
Add the names of those that you want to serve as your Personal Representative. Your nominee need not be a Washington resident, although any nonresident ultimately appointed as Personal Representative will be required to designate a Washington resident for service of process on the estate. Note that you are providing that no Personal Representative will be required to post bond, meaning that if your Personal Representative absconds with your estate and disappears south of the border (or elsewhere), your beneficiaries won’t have any recourse, such as the effective insurance policy that a bond would provide. If you wish to provide for bond, change the phrase “without bond” to “with bond” and expect your estate to bear a small premium for its purchase. See www.WeBondU.com or www.jurisco.com for typical current rates.
Note that you are expressly authorizing the Court to grant Nonintervention Powers to your Personal Representative upon his/her appointment. Having Nonintervention Powers will allow your Personal Representative to administer the estate with minimal Court supervision or interaction. If you wish the Court to continue to provide active supervision over your Personal Representative after his/her appointment, change this sentence to read as follows: “Nonintervention Powers shall not be granted to any Personal Representative of mine.”
This sentence provides that your Personal Representative will have not only all powers expressly authorized by Washington law for a Personal Representative as regards a probate estate but also all those so authorized for a Trustee as regards a trust estate.
This may not make much difference if all of your assets are probate assets and the amount of your TPP, specific gifts, and pecuniary gifts is small relative to the amount of your residuary estate. If, however, you have significant nonprobate assets, TPP, specific gifts, or pecuniary gifts, and especially if they pass to persons other than your residuary beneficiaries, your residuary beneficiaries may be significantly prejudiced, particularly if your debts, expenses, taxes, etc. are substantial.
If you desire that every asset pay its own proportionate share of your debts, expenses, taxes, etc., substitute for the sentence shown in the form the following sentence: “My Personal Representative shall apportion any costs and expenses of last illness, funeral, and burial, debts and expenses of administration, and estate and inheritance taxes (together with any interest and penalties thereon) among the assets in my probate and nonprobate estate in proportion to the ratio of the net value of each such asset as of my date of death over the total net value of all such assets as of my date of death and shall seek reimbursement therefor as regards my nonprobate assets from their respective beneficiaries.”
If you have minor children, add the names of those that you want to serve as the Guardian of your minor children if your spouse does not survive you; otherwise, delete this section. Note that this section provides that the same person will serve as both the Guardian of the Person (effectively, as substitute parent of your minor children) and the Guardian of the Estate (effectively, as manager of the property of your minor children) for all of your minor children. If you wish to nominate one person as Personal Guardian and another as Financial Guardian, see the alternative Will form provision “Nomination of Separate Guardians of Person & Estate.” To nominate different guardians for different minor children, use the language provided as a guide.
Add your name to the signature line.
Review your finished product:
Congratulations. You have now completed the steps required to prepare a typical trust Will.