LAST WILL & TESTAMENT
and
TESTAMENTARY TRUST AGREEMENT
of [TESTATOR FULL LEGAL NAME]
(North Dakota – Complex Will with Trust Template)
[// GUIDANCE: This instrument combines a traditional will with a built-in (testamentary) trust. It is drafted for use under North Dakota law and should be reviewed and customized by a licensed North Dakota attorney before execution.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Revocation & Family Information
- Appointment of Fiduciaries
4.1 Personal Representative
4.2 Guardian/Conservator - Payment of Debts, Expenses & Taxes
- Specific Devises & Bequests
- Residuary Clause & Creation of the “[TRUST NAME]”
- “[TRUST NAME]” – Operative Provisions
8.1 Trust Purpose
8.2 Trust Funding
8.3 Trustee Powers
8.4 Fiduciary Standards
8.5 Distributions to Beneficiaries
8.6 Spendthrift & Creditors’ Rights
8.7 Termination & Final Distribution - Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution & Attestation
1. DOCUMENT HEADER
1.1 Effective Date. This Last Will & Testament and Testamentary Trust (collectively, the “Instrument”) is made as of [EFFECTIVE DATE].
1.2 Testator. [TESTATOR FULL LEGAL NAME], currently domiciled at [ADDRESS], County of [COUNTY], State of North Dakota (“Testator”), being of sound mind and testamentary capacity, hereby declares this Instrument to be Testator’s last will and revokes all prior wills and codicils.
1.3 Governing Law. This Instrument shall be construed under the laws of the State of North Dakota, including its probate and trust codes, without regard to conflict-of-law principles.
2. DEFINITIONS
For ease of reference, the following capitalized terms have the meanings set forth below and apply throughout this Instrument.
“Administrator” – Any personal representative appointed by the court if no Personal Representative named herein serves.
“Beneficiary” – A person or entity entitled to receive property under Articles 6 or 8.
“Child(ren)” – All biological and legally adopted descendants of Testator born or adopted before or after the Effective Date.
“Descendants” – Lineal descendants of a person, by blood or adoption, at any generation.
“Fiduciary” – The Personal Representative, Trustee, Guardian, and any successor or co-fiduciary.
“Personal Representative” – The executor/administrator of Testator’s estate.
“Principal” – The corpus of the Trust, including additions and accretions.
“Trust” – The testamentary trust created under Article 8, titled “[TRUST NAME]”.
“Trustee” – The individual(s) or institution(s) serving as trustee of the Trust.
[// GUIDANCE: Add or delete definitions to match specific drafting choices.]
3. REVOCATION & FAMILY INFORMATION
3.1 Revocation. All prior testamentary instruments are hereby revoked in their entirety.
3.2 Marital Status. Testator is [MARRIED / SINGLE / WIDOWED / DIVORCED]. Testator’s spouse is [SPOUSE NAME].
3.3 Children. Testator has the following living children:
• [CHILD 1 FULL NAME, DOB]
• [CHILD 2 FULL NAME, DOB]
• […]
3.4 After-Born, Pre-Termitted, or Adopted Children. Any after-born or adopted child shall be treated as though named herein.
4. APPOINTMENT OF FIDUCIARIES
4.1 Personal Representative
(a) Primary Appointment. Testator appoints [PRIMARY PR NAME] as Personal Representative.
(b) Successors. If the primary cannot serve, [SUCCESSOR PR NAME] shall serve.
(c) Bond. No bond shall be required of any Personal Representative.
4.2 Guardian / Conservator of Minor Children
(a) Guardian. Testator nominates [GUARDIAN NAME] as guardian of minor Children.
(b) Successor Guardian. [SUCCESSOR GUARDIAN] is nominated as successor.
(c) Preferences. The court is requested to give deference to these nominations.
5. PAYMENT OF DEBTS, EXPENSES & TAXES
5.1 Expenses & Claims. The Personal Representative shall first pay all enforceable debts, funeral expenses, costs of administration, and estate taxes properly payable from Testator’s probate estate.
5.2 Apportionment of Taxes. Unless directed otherwise by a Beneficiary under a written agreement, estate and generation-skipping transfer taxes shall be paid from the residuary estate and charged against the gifts set forth in Article 6 and Article 7 pro rata.
5.3 Election to Defend Claims. The Personal Representative may, in a fiduciary’s discretion, settle or contest any claim.
6. SPECIFIC DEVISES & BEQUESTS
[// GUIDANCE: Use one or more of the subsections below; delete any not needed.]
6.1 Tangible Personal Property. Testator bequeaths all tangible personal property to [SPOUSE OR OTHER BENEFICIARY], subject to any written memorandum under N.D.C.C. §30.1-06-02(3).
6.2 Specific Monetary Gifts. The following cash bequests are directed:
(a) [BENEFICIARY A] – $[AMOUNT]
(b) [BENEFICIARY B] – $[AMOUNT]
6.3 Charitable Gifts. [CHARITY NAME], EIN [EIN], shall receive [DESCRIPTION].
6.4 Lapse & Anti-Lapse. If a specific Beneficiary listed above fails to survive Testator by 120 hours, the gift shall lapse into the Residuary Estate, subject to North Dakota’s anti-lapse statute.
7. RESIDUARY CLAUSE & CREATION OF THE “[TRUST NAME]”
7.1 Transfer to Trust. All residue of Testator’s estate, real and personal, wherever situated, together with lapsed gifts and insurance proceeds payable to the estate, shall pour over to the “[TRUST NAME]” established in Article 8.
8. “[TRUST NAME]” – OPERATIVE PROVISIONS
8.1 Trust Purpose
The Trust is a testamentary spendthrift trust intended to (i) provide for the health, education, maintenance, and support (“HEMS”) of the Beneficiaries, (ii) shield Trust assets from their creditors, and (iii) effect efficient inter-generational wealth transfer consistent with North Dakota trust law.
8.2 Trust Funding
The Trustee shall receive and hold:
(a) Property passing under Article 7;
(b) Any life-insurance or retirement-plan proceeds payable to the estate or Trustee; and
(c) Any additional property that may be conveyed to the Trust by inter-vivos or testamentary transfer.
8.3 Trustee Powers
The Trustee shall have all powers granted a trustee under N.D. Uniform Trust Code and any powers reasonably necessary or advisable to administer the Trust, including but not limited to:
- Invest & reinvest in any prudent investment;
- Retain original assets;
- Borrow, encumber, or pledge Trust property;
- Maintain, sell, lease, or exchange real and personal property;
- Exercise tax elections;
- Employ professionals and delegate functions as permitted by law;
- Make distributions in cash or in kind;
- Merge or divide trusts for administrative efficiency without impairing Beneficiary interests.
[// GUIDANCE: Insert any special investment limitations (e.g., ESG screens, concentration limits) if desired.]
8.4 Fiduciary Standards
8.4.1 Standard of Care. The Trustee shall discharge duties with the care, skill, and prudence of a prudent person acting in a like capacity and familiar with such matters (the “Prudent Investor Rule”).
8.4.2 Loyalty & Impartiality. The Trustee shall act solely in the interests of the Beneficiaries and impartially regarding multiple Beneficiaries.
8.4.3 Accounting. Annual written accountings shall be delivered to adult Beneficiaries and the court if required.
8.5 Distributions to Beneficiaries
8.5.1 Mandatory vs. Discretionary.
(a) Mandatory: Until each Child attains age [AGE], the Trustee shall distribute for that Child’s HEMS as the Trustee deems advisable.
(b) Discretionary: After a Child attains age [AGE], the Trustee may distribute principal or income in the Trustee’s discretion for such Child’s HEMS.
8.5.2 Age-Based Principal Withdrawals. Each Child may withdraw the following portions of that Child’s vested share:
• One-third (1/3) at age [AGE e.g., 30]
• Two-thirds (2/3) at age [AGE e.g., 35]
• The balance at age [AGE e.g., 40]
8.5.3 Accumulations. Income not distributed shall be accumulated and added to principal.
8.5.4 Special/Disabled Beneficiaries. If any Beneficiary becomes eligible for means-tested government assistance, the Trustee shall supplement, not supplant, such benefits.
8.5.5 Termination. The Trust shall terminate upon the later of (i) the youngest Beneficiary attaining age [AGE], or (ii) [NUMBER] years after Testator’s death, subject to the Rule Against Perpetuities savings clause. Remaining assets shall then be distributed free of trust to the Beneficiaries per stirpes.
8.6 Spendthrift & Creditors’ Rights
The interests of Beneficiaries are not transferable or subject to voluntary or involuntary alienation before actual receipt. Trust assets shall not be reachable by Beneficiaries’ creditors to the maximum extent permitted by law.
8.7 Termination & Final Distribution
Upon termination, the Trustee shall (i) settle all administrative expenses, (ii) prepare a final accounting, and (iii) distribute remaining Trust property in accordance with Section 8.5.5.
9. DEFAULT & REMEDIES
9.1 Events of Default. Each of the following constitutes a “Trustee Default”:
(a) Breach of fiduciary duty as determined by a court of competent jurisdiction;
(b) Failure to provide required accountings within ninety (90) days after written request;
(c) Incapacity, resignation without successor acceptance, or death.
9.2 Notice & Cure. Any adult Beneficiary may serve written notice of alleged default. The Trustee shall have thirty (30) days to cure if curable.
9.3 Remedies. If default is not cured, a Beneficiary or Co-Trustee may petition the state probate court to:
(a) Compel performance or enjoin further breach;
(b) Surcharge the Trustee;
(c) Remove and replace the Trustee;
(d) Order any other equitable relief.
9.4 Attorney Fees. The court may award reasonable attorney fees and costs to the prevailing party, payable from (i) the Trustee personally or (ii) Trust assets, consistent with equity.
10. RISK ALLOCATION
10.1 Trustee Indemnification. To the fullest extent permitted by law, the Trustee shall be indemnified and held harmless out of Trust assets from all liabilities, claims, and expenses arising from the bona fide administration of the Trust, except for acts of willful misconduct or gross negligence.
10.2 Limitation of Liability. The Trustee’s personal liability shall be limited to Trust assets. No Beneficiary may seek recovery from the Trustee’s personal assets except upon a finding of willful misconduct or gross negligence.
10.3 Insurance. The Trustee is authorized to procure and maintain fiduciary liability insurance, premiums payable from Trust income.
10.4 Force Majeure. The Trustee shall not be liable for failure to act when prevented by events beyond reasonable control, including natural disasters, war, terrorism, pandemic, or governmental action.
11. DISPUTE RESOLUTION
11.1 Governing Law. North Dakota substantive law governs.
11.2 Forum Selection. Exclusive jurisdiction and venue lie in the state probate court of [COUNTY] County, North Dakota.
11.3 Arbitration. Arbitration is not available for probate matters under this Instrument.
11.4 Jury Waiver. Probate proceedings are tried without a jury pursuant to state law.
11.5 Injunctive Relief. A court of competent jurisdiction may grant temporary, preliminary, or permanent injunctive relief to enforce trust terms.
12. GENERAL PROVISIONS
12.1 Amendment & Reformation. Because the Trust is testamentary, Testator may amend or revoke this Instrument at any time before death by duly executed codicil or new will. Post-death reformation may be sought only to correct mistakes consistent with Testator’s intent.
12.2 Severability. If any provision is held invalid, remaining provisions shall remain in force. A court may reform invalid provisions to effect Testator’s intent within legal limits.
12.3 Headings. Article and section headings are for convenience only and do not affect interpretation.
12.4 Successors & Assigns. References to Fiduciaries include their lawful successors.
12.5 Integration/Merger. This Instrument constitutes the entire testamentary plan of Testator.
12.6 Counterparts / Electronic Wills. Counterparts and electronic wills are not permitted under current North Dakota law; execution must comply with the formalities in Section 13.
12.7 Gender & Number. Words of any gender include all genders; words in singular include plural and vice-versa as context requires.
12.8 No-Contest Clause (Optional). Any Beneficiary who contests this Instrument shall forfeit his or her interest, which shall pass as if the contestant predeceased Testator. Legitimate court petitions to construe or enforce the Instrument are not a contest.
[// GUIDANCE: Consider whether a no-contest clause aligns with the client’s objectives.]
13. EXECUTION & ATTESTATION
IN WITNESS WHEREOF, I, [TESTATOR FULL LEGAL NAME], have signed this Last Will & Testament and Testamentary Trust on the date written below.
[TESTATOR SIGNATURE]
Date: ______
ATTESTATION CLAUSE
We, the undersigned witnesses, declare that on the date written below [TESTATOR NAME] executed this Instrument as Testator’s free and voluntary act, that Testator was of sound mind, and that we signed in Testator’s presence and in the presence of each other.
Witness 1: _____ Date: __
Name: [PRINT]
Address: [ADDRESS]
Witness 2: _____ Date: __
Name: [PRINT]
Address: [ADDRESS]
SELF-PROVING AFFIDAVIT (N.D.C.C. §30.1-20-02)
State of North Dakota )
County of _____ ) ss.
Before me, the undersigned authority, on this day personally appeared [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME], whose names are signed above, all known to me (or satisfactorily proven) and, being first duly sworn, declared to me that the foregoing Instrument was executed as the Testator’s will, that the Testator signed willingly (or willingly directed another to sign for the Testator), and that each Witness, in the presence and at the request of the Testator, signed the will as Witness.
Notary Public for the State of North Dakota
Commission Expires: _______
[SEAL]
[// GUIDANCE:
- Ensure witnesses are “competent” – generally disinterested and over 18.
- If a notary is not available, the will is still valid but not self-proved; a subscribing witness must later testify.
- Confirm county of execution and notarial requirements.
- Review state estate tax thresholds and add tax-planning clauses (marital deduction, credit shelter, GST) if needed.]
END OF DOCUMENT