By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Trust Attorney

I had a consultation the other day with a client who had already set up a revocable stand alone trust in addition to the will he had created. (A stand alone trust means it was created and funded before death and is not a trust created inside the will as part of the Last Will to take effect upon death).  The trust is considered revocable, meaning the client can terminate it whenever he or she chooses.  Because the trust was created outside of the will, the trust exists before a person dies, with money and property being added to it throughout the life of the person.  Even though the trust is created outside of the will, when the will is probated, will the Surrogate require the trustee(s) of this revocable stand alone to be appointed as testamentary trustees subject to the probate process?

It turns out that because the trust was created outside of the will and not written in the will, the Surrogate’s Office does not need to formally appoint a trustee(s) for that trust after death.  While additional property may be going to the stand alone trust under the terms of the Last Will, because the trust is already in existence and executed, before death the Surrogate does not need to appoint someone to operate this trust.  The only time the Surrogate will need to appoint trustees to a trust is when a decedent’s Will creates the trust. Then this trust is part of the probate process.  It is akin to appointing an executor to manage the administration of the estate.

To discuss your NJ Estate and Probate Trust matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.