Legal Question in Wills and Trusts in New Mexico
Testimentary Will/Trust
Our family has a will. There is no trust involved except there are statements in the will discussing trust type provisions. I am told this is a testimentary trust. This is for a married couple whose wills are mirrored to each other. Their net worth is more than $2 million. As I understand the testimentary trust - once one of them passes away - the estate must be probated. After probate is completed - the surviving spouse can then determine whether to go ahead and make a trust. Is this true? What happens if a trust is not made after the death of the fist spouse? Wouldn't it be best for a living trust to be accomplished prior to either of them passing away?
1 Answer from Attorneys
Re: Testimentary Will/Trust
A living trust can be established only by living persons. The will in question must be read in its entirety to know what its provisions are, but generally a surviving spouse may or may not choose to establish a trust after the death of the decedent. A trust may be established by will upon the death of the testator, but the avoidance of probate, the touted benefit of a living trust, is not attained.
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