LAST WILL AND TESTAMENT
AND TESTAMENTARY TRUST
OF [TESTATOR’S FULL LEGAL NAME]
[// GUIDANCE: This complex will is drafted for use under Indiana law and incorporates a testamentary trust. Customize all bracketed placeholders before execution. Obtain local counsel review to confirm compliance with the most current statutory requirements and the client’s objectives.]
TABLE OF CONTENTS
- Document Header
- Recitals
- Definitions
- Payment of Debts, Expenses, and Taxes
- Tangible Personal Property Memorandum
- Specific Bequests
- Residuary Estate & Creation of Testamentary Trust
- Testamentary Trust Provisions
- Appointment of Fiduciaries
- Fiduciary Powers & Standards
- Trustee Indemnification & Liability Limitation
- Default, Removal & Successor Provisions
- Governing Law, Forum & Dispute Resolution
- General Provisions
- Execution Block (Signature, Witnesses, Self-Proving Affidavit)
1. DOCUMENT HEADER
This Last Will and Testament (the “Will”) is made on the [Day] day of [Month, Year] (the “Effective Date”) by [TESTATOR’S FULL LEGAL NAME], residing at [Street Address, City, County of __, State of Indiana] (the “Testator”), who declares this instrument to be the Testator’s Will and hereby revokes all prior wills and codicils.
2. RECITALS
A. Testator is of legal age, of sound mind, and acting voluntarily.
B. Testator is domiciled in [County], Indiana and intends that this Will be governed by the laws of the State of Indiana and adjudicated exclusively in the probate court of said county, subject to Indiana Code Title 29 (“Probate Code”).
C. Testator desires to provide for the orderly disposition of the Testator’s estate, the continued management of assets for beneficiaries’ benefit, and the appointment of fiduciaries to carry out these intentions.
3. DEFINITIONS
Unless the context clearly indicates otherwise, capitalized terms have the meanings set forth below and apply throughout this Will, the Testamentary Trust, and any ancillary documents:
“Administrator” means a fiduciary appointed by the court if the nominated Personal Representative cannot or will not serve.
“Beneficiary” means any person or entity entitled to receive benefits under this Will or the Testamentary Trust.
“Children” means the Testator’s biological and legally adopted children living or in gestation on the Effective Date.
“County Court” means the probate division of the court having jurisdiction over this estate in the State of Indiana.
“HEMS” means health, education, maintenance, and support as interpreted under Internal Revenue Code § 2041 and applicable Indiana law.
“Personal Representative” means the executor nominated in Section 9.
“Qualified Trustee” means a trustee meeting the requirements of Ind. Code § 30-4-2-13.
“Residuary Estate” has the meaning set forth in Section 7.
“Testamentary Trust” or “Trust” means the trust created in Section 7 and governed by Section 8.
“Trustee” includes any original, additional, or successor Trustee acting hereunder.
[// GUIDANCE: Add or delete defined terms as necessary to match customized drafting.]
4. PAYMENT OF DEBTS, EXPENSES, AND TAXES
4.1 The Personal Representative shall first pay from the probate estate:
a. All enforceable debts and final expenses of the Testator;
b. Expenses of administering this estate; and
c. All estate, inheritance, and other death taxes (including any interest or penalties) attributable to property passing under or outside of this Will, without seeking reimbursement from any Beneficiary, unless otherwise provided by governing tax apportionment statutes.
4.2 The Personal Representative may select assets to sell or distribute in kind in satisfaction of these obligations, exercising discretion consistent with the duty of prudence.
5. TANGIBLE PERSONAL PROPERTY MEMORANDUM
5.1 Pursuant to Ind. Code § 29-1-6-1, Testator may leave a signed, dated memorandum disposing of items of tangible personal property not otherwise specifically bequeathed herein.
5.2 The Personal Representative shall incorporate that memorandum by reference and distribute the described items accordingly.
6. SPECIFIC BEQUESTS
6.1 Charitable Gifts. I give [Description of Gift] to [Charity Name, EIN, Address].
6.2 Personal Gifts. I give [Description] to [Full Name & Relationship].
6.3 Lapse. If any specific Beneficiary named in this Section does not survive me by [30] days, that gift shall lapse and pass to the Residuary Estate unless an alternate Beneficiary is expressly named.
[// GUIDANCE: List additional specific gifts as required. Ensure clarity in identifying gifted property.]
7. RESIDUARY ESTATE & CREATION OF TESTAMENTARY TRUST
7.1 Definition. The “Residuary Estate” consists of all property, real and personal, tangible and intangible, wherever situated, not effectively disposed of by prior Sections.
7.2 Pour-Over to Trust. I devise and bequeath my entire Residuary Estate to the Trustee IN TRUST, to be held, managed, and distributed in accordance with the Testamentary Trust provisions in Section 8.
7.3 Disclaimer Contingency. Any property disclaimed by a Beneficiary shall pass under this Section as if that Beneficiary had predeceased the Testator.
8. TESTAMENTARY TRUST PROVISIONS
8.1 Name. This trust shall be known as the [TESTATOR NAME] TESTAMENTARY TRUST.
8.2 Primary Beneficiaries. My living Children, namely [Child 1], [DOB], [Child 2], [DOB], and any later-born or adopted Children (collectively, “Primary Beneficiaries”).
8.3 Trust Purposes. The Trust is established to:
a. Provide for the health, education, maintenance, and support (HEMS) of the Primary Beneficiaries;
b. Preserve assets for long-term family needs; and
c. Protect assets from creditors through the spendthrift provision in Section 8.12.
8.4 Distributions During Minority. Until a Beneficiary attains the Distribution Age (defined below), the Trustee SHALL distribute or apply so much of the net income and principal as the Trustee, in the Trustee’s sole discretion, deems necessary or advisable for that Beneficiary’s HEMS. Undistributed income shall be accumulated and added to principal.
8.5 Mandatory Division and Termination.
a. Upon a Beneficiary’s attainment of [Age 25] (“Distribution Age”), the Trustee SHALL distribute one-half of that Beneficiary’s share outright.
b. Upon the Beneficiary’s attainment of [Age 30], the Trustee SHALL distribute the remaining share outright, and the Trust share for that Beneficiary shall terminate.
c. If a Beneficiary dies before full distribution, that Beneficiary’s share shall be distributed per stirpes to his or her descendants; lacking descendants, it shall be added proportionately to the remaining Beneficiaries’ shares.
8.6 Alternate Beneficiaries. Should no Primary Beneficiary survive beyond the Distribution Age, the Trust property shall be distributed to [Name(s) or Charity].
8.7 Spendthrift Clause. To the maximum extent permitted by Ind. Code § 30-4-3-2, the interests of any Beneficiary are not subject to voluntary or involuntary transfer, assignment, pledge, or anticipation, nor to claims of the Beneficiary’s creditors.
8.8 Investment & Management Standards. The Trustee shall invest Trust assets in accordance with the Indiana Uniform Prudent Investor Act (Ind. Code § 30-4-3.5). The Trustee may maintain a diversified portfolio unless the Trustee reasonably determines that, because of special circumstances, the purposes of the Trust are better served without diversification.
8.9 Fiduciary Accounting. The Trustee shall provide annual written reports to the adult Beneficiaries and, when required, to the County Court, complying with Ind. Code § 30-4-5-12.
8.10 Trust Protector (Optional). [PLACEHOLDER: Insert appointment of a Trust Protector with limited amendment powers, if desired.]
8.11 Tax Provisions.
a. Grantor Trust Status. To the extent permitted by law, the Trust shall be treated as a grantor trust described in I.R.C. §§ 671–679 until my death.
b. Generation-Skipping Transfer (GST) Tax. The Trustee shall allocate GST exemption so as to maximize tax efficiency.
8.12 Allocation of Receipts & Disbursements. Indiana Principal and Income Act (Ind. Code § 30-2-14-1 et seq.) shall govern unless the Trustee, acting reasonably, determines an alternate allocation better carries out the Trust purposes.
9. APPOINTMENT OF FIDUCIARIES
9.1 Personal Representative (Executor).
a. Primary Nominee: [Full Name], [Address].
b. Successor: [Full Name], [Address].
9.2 Trustee.
a. Primary Trustee: [Full Name or Corporate Trustee], [Address].
b. First Successor: [Full Name].
c. Second Successor: [Full Name].
d. Any successor Trustee must be a Qualified Trustee and must accept the office in writing.
9.3 Guardian of Minor Children.
a. Primary Guardian: [Full Name].
b. Alternate Guardian: [Full Name].
c. Bond Requirement. No Guardian or Personal Representative nominated herein shall be required to post bond, unless the County Court orders otherwise for good cause shown.
10. FIDUCIARY POWERS & STANDARDS
10.1 Statutory Powers Incorporated. The Trustee and Personal Representative shall have all powers granted by Ind. Code §§ 30-4-3-3 and 29-1-13-3, as amended, including, without limitation, the powers to:
a. Buy, sell, lease, and exchange property;
b. Borrow money and encumber Trust assets;
c. Manage business interests;
d. Implement tax elections;
e. Employ professionals and delegate authority as appropriate.
10.2 Standard of Care. Fiduciaries shall discharge their duties in good faith, with loyalty, and with the care an ordinarily prudent person would exercise under similar circumstances.
10.3 Compensation. Fiduciaries are entitled to reasonable compensation in accordance with Ind. Code § 29-1-10-13, unless waived in writing.
11. TRUSTEE INDEMNIFICATION & LIABILITY LIMITATION
11.1 Limitation of Liability. A Trustee shall not be liable for any loss to the Trust except for losses resulting from:
a. Acts of intentional misconduct or bad faith;
b. Reckless disregard of fiduciary duties; or
c. Acts for which exculpation is prohibited by law.
11.2 Indemnification. The Trust shall indemnify and hold harmless each Trustee, to the fullest extent allowed under Indiana law, against any claim, liability, or expense (including reasonable attorney fees) incurred in the good-faith administration of the Trust. Such indemnification shall be satisfied solely from the Trust assets (“Liability Cap”).
11.3 Advancement of Expenses. Trust assets may be advanced to cover defense costs, provided the Trustee executes a written undertaking to repay such amounts if it is finally determined that the Trustee is not entitled to indemnification hereunder.
12. DEFAULT, REMOVAL & SUCCESSOR PROVISIONS
12.1 Events of Default. Any Trustee who:
a. Violates fiduciary duties;
b. Becomes incapacitated;
c. Files for bankruptcy protection; or
d. Is convicted of a felony involving dishonesty
shall be deemed in default.
12.2 Remedies. Upon default, any interested Beneficiary, co-Trustee, or the Trust Protector (if any) may petition the County Court for:
a. Removal of the defaulting Trustee;
b. Surcharge;
c. Injunctive relief to prevent further harm; and
d. Any other equitable remedies.
12.3 Successor Appointment. Upon a vacancy, the next-named successor in Section 9.2 shall serve. If all named successors are unable or unwilling, a majority of the adult, income-eligible Beneficiaries may appoint a Qualified Trustee; lacking unanimous choice, the County Court shall appoint.
13. GOVERNING LAW, FORUM & DISPUTE RESOLUTION
13.1 Governing Law. This Will and the Testamentary Trust shall be construed and enforced in accordance with the laws of the State of Indiana, without regard to its conflict-of-laws principles.
13.2 Forum Selection. Exclusive venue for any proceeding concerning this Will or Trust shall be [County] Probate Court, State of Indiana.
13.3 Arbitration. Consistent with the Metadata directive that arbitration is not available, no arbitration provision is hereby incorporated.
13.4 Jury Waiver. Probate matters in Indiana are generally tried without a jury; however, to the extent a jury trial might otherwise be available, the parties do NOT waive any constitutional right to a jury.
13.5 Injunctive Relief. The County Court is expressly authorized to issue temporary, preliminary, or permanent injunctive relief to enforce the Trust provisions.
14. GENERAL PROVISIONS
14.1 No Contest Clause (Optional). Any Beneficiary who contests this Will or the Trust (excluding good-faith petitions for interpretation or accounting) shall forfeit his or her interest and be treated as having predeceased the Testator.
14.2 Severability. If any provision of this Will or Trust is held invalid, the remaining provisions shall remain in full force so long as the overall intent of the Testator can be carried out.
14.3 Headings. Headings are for reference only and do not affect substantive meaning.
14.4 Digital Assets. The Personal Representative and Trustee shall have the authority to access, manage, and control the Testator’s digital assets in accordance with the Revised Uniform Fiduciary Access to Digital Assets Act, Ind. Code § 29-1-19.3-1 et seq.
14.5 Incorporation by Reference. All referenced documents (e.g., tangible personal property memorandum) are incorporated herein as if fully set forth.
14.6 Counterparts & Electronic Signatures. This Will may be executed in multiple counterparts, each deemed an original. Electronic or remote signing is [permitted / not permitted] under Ind. Code § 29-1-5-3(b)(4) and any applicable emergency orders, provided all statutory formalities are satisfied.
15. EXECUTION BLOCK
IN WITNESS WHEREOF, I, [TESTATOR’S NAME], have hereunto set my hand and seal on this [Day] day of [Month, Year].
[TESTATOR’S SIGNATURE]
Printed Name: [TESTATOR’S NAME]
ATTESTATION CLAUSE
We, the undersigned witnesses, certify that on the date above, [TESTATOR’S NAME], declared this instrument to be Testator’s Last Will, signed it in our presence, and requested that we witness the same. We affirm that the Testator appeared to be of sound mind and over eighteen (18) years of age, and that we, in the Testator’s presence and in the presence of each other, have hereunto subscribed our names as witnesses.
-
______ Date: _
Witness Signature
Printed Name: [Witness 1]
Address: [Witness 1 Address] -
______ Date: _
Witness Signature
Printed Name: [Witness 2]
Address: [Witness 2 Address]
SELF-PROVING AFFIDAVIT
State of Indiana )
County of ____) ss:
We, [TESTATOR’S NAME], [Witness 1], and [Witness 2], being first duly sworn, do hereby declare to the undersigned officer that the Testator signed and executed this Will as the Testator’s Last Will, that the Testator signed willingly, and that each witness, in the presence of the Testator and of each other, signed the Will as witness. We further declare that, to the best of our knowledge, the Testator was at least eighteen (18) years old, of sound mind, and not under any constraint or undue influence.
______ ______
[TESTATOR’S SIGNATURE] [WITNESS 1 SIGNATURE]
______ ______
[WITNESS 2 SIGNATURE]
Subscribed, sworn to, and acknowledged before me by [TESTATOR’S NAME], and subscribed and sworn to before me by [Witness 1] and [Witness 2], this _ day of _, 20___.
Notary Public Signature
Printed Name: ____
My Commission Expires: __
County of Residence: _______
[// GUIDANCE: Indiana permits self-proving wills under Ind. Code § 29-1-5-3.1. Using the above affidavit avoids the need for live witness testimony during probate.]
END OF DOCUMENT