COMPLEX WILL WITH TESTAMENTARY TRUST
(Delaware Law – Draft Template)
[// GUIDANCE: This template is intentionally comprehensive. Delete any Articles or provisions that are unnecessary for the particular client matter and renumber accordingly.]
TABLE OF CONTENTS
- Article I – Definitions
- Article II – Identification & Revocation of Prior Wills
- Article III – Family Information & Statement of Intent
- Article IV – Specific Bequests
- Article V – Residuary Clause & Creation of Testamentary Trust
- Article VI – Appointment of Fiduciaries
- Article VII – Administration of the [NAME OF TRUST]
- Article VIII – Fiduciary Powers & Standards
- Article IX – Tax & Funding Provisions
- Article X – Fiduciary Compensation, Indemnification & Liability Cap
- Article XI – No-Contest, Dispute Resolution & Forum Selection
- Article XII – Miscellaneous
- Article XIII – Execution, Attestation & Self-Proving Affidavit
ARTICLE I
DEFINITIONS
For purposes of this Will, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in a particular context shall have the meanings assigned in this Article I.
“Act” means the Delaware trust, probate and fiduciary statutes in effect on the date of Testator’s death, including, without limitation, Title 12 of the Delaware Code and any successor provisions.
“Beneficiary” means any person or entity entitled, presently or in the future, to receive income or principal of the Trust.
“Child” or “Children” includes any child hereafter born to or legally adopted by Testator and, unless specifically excluded, any posthumous children.
“Delaware Probate Court” means the Court having primary jurisdiction over the probate of this Will under Delaware law.
“Executor” means the Personal Representative of Testator’s estate appointed in Article VI.
“Fiduciary” means each Executor, Trustee, Guardian, Trust Protector or other person serving in a fiduciary capacity hereunder.
“GST” means generation-skipping transfer tax imposed under Chapter 13 of the Internal Revenue Code of 1986, as amended (“Code”).
“Spouse” means [FULL LEGAL NAME OF SPOUSE], provided he/she survives Testator by at least thirty (30) days; otherwise “Spouse” shall mean the person who is Testator’s lawful spouse on the date of death.
“Testator” means [FULL LEGAL NAME], the maker of this Will.
“Trust” means the testamentary trust created under Article V, together with any subdivisions or further trusts created in accordance with this Will.
“Trustee” means the person(s) or corporate fiduciary(ies) appointed to administer the Trust in Article VI, and any duly acting successor.
[// GUIDANCE: Add, remove, or revise defined terms to match client-specific drafting.]
ARTICLE II
IDENTIFICATION & REVOCATION OF PRIOR WILLS
2.1 Testator. I, [FULL LEGAL NAME], a resident of [COUNTY], Delaware, make, publish, and declare this to be my Last Will and Testament (“Will”), hereby revoking all prior wills and codicils.
2.2 Governing Law. This Will and any Trust created hereby shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict-of-laws principles, except as federal law may require otherwise.
ARTICLE III
FAMILY INFORMATION & STATEMENT OF INTENT
3.1 Family Status. I am married to [SPOUSE NAME] (“Spouse”). We have the following children:
• [CHILD 1 FULL NAME], born [DOB]
• [CHILD 2 FULL NAME], born [DOB]
3.2 Additional Issue. References to “my Child” or “my Children” shall include any child hereafter born to or adopted by me.
3.3 Primary Intent. It is my intent to provide for my Spouse and descendants, to protect minor beneficiaries through a testamentary trust structure, and to minimize overall transfer taxes consistent with applicable law.
ARTICLE IV
SPECIFIC BEQUESTS
4.1 Tangible Personal Property. I give my tangible personal property and any insurance thereon to my Spouse, if living; otherwise to my Children who survive me, to be divided as they shall agree, or, absent agreement within six (6) months, as determined by my Executor.
4.2 Monetary & Charitable Gifts. I give the following specific bequests, free of tax, if any, to be paid as soon as practicable after my death:
(a) $[AMOUNT] to [CHARITY/INDIVIDUAL] of [ADDRESS];
(b) [DESCRIPTION OF ITEM] to [BENEFICIARY NAME]; and
(c) [ADD OTHERS AS REQUIRED].
4.3 Abatement. Specific bequests shall abate proportionately, after exhaustion of the residuary estate, if necessary to pay debts, taxes, expenses, or statutory allowances.
ARTICLE V
RESIDUARY CLAUSE & CREATION OF TESTAMENTARY TRUST
5.1 Disposition of Residuary Estate. All the rest, residue, and remainder of my estate, real and personal, and wherever situate, including any lapsed legacies (collectively, “Residuary Estate”) I give, devise, and bequeath to the Trustee, IN TRUST, to hold, manage, and distribute as provided below (the “Family Trust” or “Trust”).
5.2 Separate Shares. Upon my death, the Trustee shall divide the Trust into equal separate shares for each Child of mine then living and one (1) share collectively for the then-living issue, per stirpes, of any deceased Child. Each separate share shall be held and administered as a separate trust under the articles that follow.
5.3 Primary Beneficiaries. Each Child’s Trust shall benefit (i) such Child during his or her lifetime, and (ii) upon such Child’s death, his or her issue, per stirpes.
5.4 Distribution Standards. During the lifetime of a Child, the Trustee may distribute to or for the benefit of such Child so much of the net income and principal as the Trustee, in its sole discretion, deems advisable for the Child’s health, education, maintenance, and support (“HEMS Standard”), after first considering the Child’s other available resources.
5.5 Termination. Each Child’s Trust shall terminate upon the earliest to occur of:
(a) the Child’s attaining age [35]; or
(b) the Child’s death; or
(c) the depletion of the Trust.
At termination, the remaining Trust property shall be distributed to the Child, if then living; otherwise to his or her issue, per stirpes. If none, the balance shall be added equally to the shares of my then-living Children or their issue, per stirpes, or, if none, to my heirs-at-law as determined under Delaware intestacy law then in effect.
[// GUIDANCE: Adjust ages, distribution standards, and ultimate takers to align with client planning objectives.]
ARTICLE VI
APPOINTMENT OF FIDUCIARIES
6.1 Executor. I nominate and appoint [PRIMARY EXECUTOR NAME] of [CITY, STATE] as Executor. If he/she fails to qualify or ceases to serve, I nominate [SUCCESSOR EXECUTOR NAME] as successor.
6.2 Trustee. I nominate and appoint [PRIMARY TRUSTEE NAME] as Trustee of the Trust. If he/she fails to qualify or ceases to serve, [SUCCESSOR TRUSTEE NAME] shall serve. A corporate fiduciary qualified to conduct trust business in Delaware may be substituted at any time by written instrument acknowledged before a notary public.
6.3 Guardian. If at my death any minor Child of mine is without a legal guardian, I appoint [PRIMARY GUARDIAN NAME] as Guardian of the person and property of such Child, and [ALTERNATE GUARDIAN NAME] as successor.
6.4 Trust Protector (Optional). I appoint [TRUST PROTECTOR NAME] with the powers stated in Article VIII. [Delete if not desired.]
ARTICLE VII
ADMINISTRATION OF THE [NAME OF TRUST]
7.1 Investment Authority. The Trustee shall have power to invest and reinvest Trust assets pursuant to Delaware fiduciary investment standards and may, without limitation, retain any asset, commingle for investment purposes, employ agents, and delegate investment functions as permitted under the Act.
7.2 Accounts & Reporting. The Trustee shall provide at least annual statements of account to the adult income beneficiaries. A statement becomes final and binding ninety (90) days after delivery unless objected to in writing.
7.3 Directed Trust Governance (Optional). If a Trust Protector or Investment Adviser is appointed, the Trustee’s liability for acts taken at their written direction shall be limited to willful misconduct. [// GUIDANCE: Delaware permits directed trusts; include only if appropriate.]
7.4 Spendthrift Provision. No interest under this Will or Trust shall be assignable or subject to creditor claims prior to actual receipt by a Beneficiary, to the maximum extent permitted by law.
ARTICLE VIII
FIDUCIARY POWERS & STANDARDS
8.1 Incorporation by Reference. All powers granted under the Act to fiduciaries are incorporated herein by reference, in addition to the powers expressly conferred.
8.2 Specific Powers. Without limiting the foregoing, the Trustee may:
(a) buy, sell, exchange, lease, option, or mortgage real or personal property;
(b) operate any business or venture, incorporate or liquidate the same;
(c) borrow money, with or without security, and pledge Trust assets;
(d) manage digital assets and accounts;
(e) determine income and principal allocations;
(f) prosecute or defend claims in any jurisdiction; and
(g) exercise all other powers necessary for proper administration.
8.3 Fiduciary Standard of Care. Each Fiduciary shall exercise the judgment and care, under the circumstances then prevailing, that a prudent person would employ in the management of property of another, in accordance with Delaware law.
8.4 Reliance on Advisors. A Fiduciary may rely in good faith on professional advice (legal, tax, accounting, valuation, or investment) and shall not be liable for any act or omission resulting from such reliance.
ARTICLE IX
TAX & FUNDING PROVISIONS
9.1 Tax Apportionment. All estate, inheritance, GST, and similar taxes occasioned by my death shall be paid from my Residuary Estate without apportionment, except that taxes attributable to property over which I possess a power of appointment shall be borne by the appointees of such property.
9.2 Marital Deduction Planning (Optional). Notwithstanding any other provision, the Executor and Trustee are authorized to make elections under Sections 2056, 2057, 2517, 2652, and other applicable provisions of the Code to minimize overall estate and GST taxes, even if such elections alter the distribution otherwise provided.
9.3 Funding Order. The Executor shall satisfy specific bequests first from liquid assets, then from other property having the least appreciation potential, unless directed otherwise by the Trustee to achieve optimal tax results.
ARTICLE X
FIDUCIARY COMPENSATION, INDEMNIFICATION & LIABILITY CAP
10.1 Compensation. Each Fiduciary shall be entitled to reasonable compensation in accordance with Delaware law or, if a corporate fiduciary, its published fee schedule in effect at the time services are rendered.
10.2 Reimbursement. Each Fiduciary shall be reimbursed from the Trust or Estate, as applicable, for all reasonable expenses incurred in the performance of fiduciary duties.
10.3 Indemnification. To the maximum extent permitted by law, each Fiduciary shall be indemnified out of the Trust or Estate assets (and only such assets), against liability, claims, and expenses (including reasonable attorneys’ fees) incurred by reason of such person’s good-faith acts or omissions, except for breaches arising from willful misconduct or gross negligence. No Fiduciary shall be required to give bond or other security.
10.4 Liability Cap. Any monetary liability of a Trustee hereunder shall be limited to the value of the Trust assets under its control at the time the liability is determined, and such liability shall be satisfied solely from those assets.
ARTICLE XI
NO-CONTEST, DISPUTE RESOLUTION & FORUM SELECTION
11.1 In Terrorem Clause. If any Beneficiary contests this Will or any Trust created hereby, directly or indirectly, or seeks to impair or invalidate any provision, any share or interest given to that Beneficiary (and to his or her descendants) shall lapse and pass as though such Beneficiary had predeceased me without issue.
11.2 Governing Law; Forum. All matters relating to the probate of this Will or administration of the Trust shall be determined exclusively under the laws of the State of Delaware and within the exclusive jurisdiction of the Delaware Probate Court.
11.3 Jury Trial Waiver. To the extent a matter is triable by jury, all persons interested in my Estate or any Trust waive the right to a trial by jury in the Delaware Probate Court.
11.4 Injunctive Relief. The Delaware Probate Court shall retain full equitable powers, including injunctive relief, to enforce the terms of this Will and Trust.
11.5 Arbitration. Arbitration is not available for disputes arising under this Will or any Trust created hereby, except by unanimous written agreement of all interested parties and the Fiduciaries.
ARTICLE XII
MISCELLANEOUS
12.1 Headings & Gender. Headings are for convenience only and do not affect interpretation. Words of any gender include all genders; words in the singular include the plural and vice versa.
12.2 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force to the maximum extent permitted by law.
12.3 Digital Signatures. To the extent permitted by Delaware law, facsimile, scanned, or other electronic signatures shall be deemed originals.
12.4 Integration. This Will (including any duly executed codicils) constitutes the entire expression of my testamentary intent.
ARTICLE XIII
EXECUTION, ATTESTATION & SELF-PROVING AFFIDAVIT
Executed this ___ day of _, 20_, at ________, Delaware.
[FULL LEGAL NAME], Testator
We, the undersigned, hereby certify that the Testator declared the foregoing instrument to be his/her Last Will and Testament, signed it in our presence, and requested us to act as witnesses.
Witness #1: ____ Address: ________
Witness #2: ____ Address: ________
[// GUIDANCE: Delaware requires two credible witnesses in the Testator’s presence. Include addresses.]
SELF-PROVING AFFIDAVIT
State of Delaware )
) SS.
County of ____ )
BEFORE ME, the undersigned authority, personally appeared [TESTATOR NAME], [WITNESS #1 NAME], and [WITNESS #2 NAME], who, being duly sworn, acknowledged that the foregoing instrument is the Testator’s Last Will and Testament, executed freely and voluntarily for the purposes therein expressed, and that each witness, in the presence of the Testator and of each other, signed the Will as witness.
Notary Public
My Commission Expires: _____
[Seal]
[// GUIDANCE: Review Delaware notarial requirements; affix seal as applicable.]