Revocable Joint Trust for Married Couple
(Basic)

Summary

This template is a revocable joint trust agreement for a married couple. This is non-jurisdictional and can be adapted for use in your state. Use this trust to minimize or eliminate the need to probate an estate after death by allowing trust assets to pass directly to beneficiaries. This template includes practical guidance, drafting notes, and alternate and optional clauses. This revocable trust is designed for use by joint settlors who are married, want to create a trust for themselves for life and, on the death of the first settlor, retain the assets in trust for the surviving settlor. This trust does not make use of a marital deduction formula and therefore is not designed to utilize the applicable credit amount or to reduce taxes in the estate of the second settlor. This type of trust should be limited to use by settlors whose estates are not substantial enough to be seriously affected by the estate tax. Trusts are generally governed by state law. A trust agreement can override many default rules in each state. However, certain state trust laws (e.g., trustee notice requirements) are mandated by statute and cannot be altered by contrary language in the trust agreement. Many states have adopted some version of the Uniform Trust Code (UTC), a uniform act promulgated by the Uniform Law Commission to provide uniformity to the law of trusts throughout the United States. Thus, this template's drafting notes mainly refer to related laws under the UTC. A practitioner should refer to the trust laws in the applicable jurisdiction before drafting a joint trust for clients. Using this template requires joint representation of spouses; however, prior to doing so you must ensure joint representation is appropriate and does not violate your state's ethics rules or codes of professional conduct. For example, under the American Bar Association's Model Rules of Professional Conduct, joint representation is not permitted where the representation of one client is directly adverse to the other client or there is significant risk that the representation of one client will materially limit the lawyer's responsibilities to the other client. See 2018 Model Rules of Professional Conduct 1.7(a). However, a lawyer may still represent the clients jointly with advanced informed written consent waiver by them both if: • The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. • The representation is not prohibited by law. • The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. See 2018 Model Rules of Professional Conduct 1.7(b). To maximize the benefits of a revocable trust, you should counsel your clients via a letter or checklist to transfer their assets from their names into the name of the revocable trust. Properly drafting and funding a trust is a multi-step process and the trust agreement is just one of the important components. Visualization of Revocable Trust Drafting and Funding Flowchart. The circumstances of the settlors and beneficiaries, as well as the specific intentions of the settlors, may require modifications to this template. For an in-depth discussion of revocable trusts, see Characteristics and Uses of Trusts and Requirements and Restrictions on Trust Purposes and Administration. For a 50-state survey that includes information on state trust laws, see Trusts State Law Survey. For a full listing of key content regarding trust clauses, see Trust Clauses Resource Kit. For further guidance on inter vivos trusts, see Murphy's Will Clauses § 18.02.