WYOMING WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Wyoming Statutes, Tit. 2, Ch. 6 โ Wills (Wyo. Stat. ยงยง2-6-101, et. seq.).
Trusts: Wyoming Statutes, Tit. 4 โ Trusts (Wyo. Stat. ยงยง4-1-101, et. seq.).
Wyoming Will Requirements.
To create a valid Wyoming will, a testator must be โof legal age and sound mind.โ Legal age in Wyoming is 18 years. A Wyoming will must be in writing and must be signed by the testatorโor by another person in the testatorโs presence at the testatorโs express direction.
A Wyoming will other than a holographic will must also be signed by at least two competent witnessesโwho must witness the testatorโs execution of the will. A Wyoming will witnessed by an interested person (i.e., someone who derives a benefit from the will) is not invalid. However, a provision in favor of a witness is void unless there are at least two other credible witnesses. If an interested witness would have received a share of the estate had the testator been intestate, the witness may still receive the intestate portion up to the value of the amount devised to the witness in the will.ย
Wyoming wills do not require notarization but can be made โself-provedโ if the testator and witnesses execute a compliant notarized affidavit. The self-proved affidavit provides evidence that the testator signed the will voluntarily with the requisite capacity and intent to create a will and was under no constraint or undue influence when signing. A Wyoming self-proved will can be admitted in probate without in-person testimony of the witnesses. The Wyoming Legislature provides a model self-proved affidavit within Wyo. Stat. ยง2-6-114.
Wyoming law authorizes a testator to incorporate within a will a written statement or list of tangible personal property not addressed within the will itself.ย The personal-property list, which must be referenced in the will, identifies an intended beneficiary for each item included within the list. The list must be dated, written in the testatorโs handwriting or signed by the testator, and must describe each item and beneficiary with reasonable certainty.
A list of tangible personal property incorporated within a will is often titled โmemorandum of personal propertyโ or โspecific gift list.โ It may be prepared before or after the willโs execution and may be altered by the testator after its initial preparation. Any alterations must be signed and dated by the testator. Under Wyoming law, a memorandum of personal property may not be used to transfer real estate, money, promissory notes or other evidence of indebtedness, title documents, securities, or property used in a trade or business.
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Amendment, Revision, and Revocation of Wyoming Wills.
A Wyoming will may be amended by executing another will that supplements the existing will or by executing a codicilโa separate document amending an existing will. A codicil or subsequent will must satisfy all of Wyomingโs requirements for execution of an original will.ย ย
A Wyoming will can be revokedโin whole or in partโby a later will that either expressly revokes the earlier will or includes terms inconsistent with the earlier will. Alternatively, a Wyoming will may be revoked by burning, tearing, canceling, obliterating, or destroying the will with the intent and for the purpose of revoking the will.
If a testator is divorced after executing a Wyoming will, any provisions of the will in favor of the former spouse are revoked by operation of lawโunless the will expressly states otherwise. Provisions revoked by divorce are treated as though the former spouse did not survive the testator. Any provisions revoked due to divorce are automatically reinstated if the testator remarries the former spouse. A decree of separation that does not formally sever the marriage does not trigger revocation due to divorce.
Wyoming law does not provide a surviving spouse married to a testator after execution of the testatorโs will a presumed share in the deceased spouseโs estate. Wyomingโs spousal elective share statute protects a later-wed surviving spouse from disinheritance by omission. Wyoming is one of a small minority of states with no statute providing a presumed share to a testatorโs after-born child omitted from a will executed before the child was born.
Holographic and Oral Wills.
A document that is not witnessed or otherwise does not satisfy Wyomingโs execution requirements for wills may still be valid as a holographic will. To qualify as a holographic will under Wyoming law, a document intended as a will must be signed by the testator and written entirely in the testatorโs handwriting.
Oral (or โnuncupativeโ) wills are not recognized under Wyoming law.
Wyoming Trust Requirements.
Wyoming trusts are primarily governed by the Uniform Trust Code, as enacted and modified by the Wyoming State Legislature at Wy. Stat., ยงยง4-10-101, et. seq.ย The purpose of a Wyoming trust must be lawful, possible to achieve, and not in conflict with Wyoming public policy.ย In general, a Wyoming trustโs terms and the trust itself must be for the benefit of the trustโs beneficiaries.ย ย ย
Wyoming trusts can be created through transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument), a property ownerโs declaration that he or she holds identifiable property as trustee, or by exercising a power of appointment in favor of a trustee.ย
To create a valid trust under Wyoming law, the settlor must express an intent to create a trust and have adequate capacity (measured under the same standard that applies to wills). A Wyoming trust is void to the extent its creation was induced through fraud, duress, or undue influence.
An agent acting under power of attorney can create a Wyoming trust on a settlorโs behalf if the power-of-attorney document expressly allows the agent to create a trust and the trust provides instructions for distribution of assets upon the settlorโs death. A Wyoming revocable living trust may also be created by a court-appointed conservator acting with court-approval.ย ย
Along with the settlor who creates the trust, a Wyoming trust must have a definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes) and a trustee with actual duties to perform.ย While there can be overlap between a trustโs parties, a Wyoming trustโs sole trustee cannot also be the trustโs sole beneficiary.ย ย
A trustee of a Wyoming trust is a fiduciary and must manage the trust and trust property in good faithโexercising reasonable care, skill, and caution in carrying out their duties. A trustee who invests trust assets is governed by the โprudent investor rule,โ though a trust instrument may modify or eliminate the rule.
Wyomingโs version of the Uniform Trust Code authorizesโbut does not requireโappointment of a โtrust protectorโ or โtrust advisorโ within a trust instrument. Trust protectors and trust advisors are persons a trust instrument grants specific powers in relation to the trust. A trust protectorโs powers can includeโfor exampleโthe power to remove a trustee and appoint a replacement; modify the trust for tax advantages or in response to changes in law; and direct, consent to, or adjust distributions to beneficiaries. A trust advisorโs powers can include the power to advise the trustee relating to beneficiaries; advise or direct trust investments or asset acquisitions; and to direct or consent to distributions.
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Wyoming law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence. Certain types of trustsโsuch as trusts relating to real estateโmust be evidenced by a written instrument.ย
A deed that conveys Wyoming real estate to a trust or trustee in a representative capacity must sufficiently define the trust to provide notice of the trust. The deed may define the trust by identifying the names of the trust and trustee and the date upon which the trust was formed. Alternatively, the deed can refer to the book-and-page number of a certificate of trust that includes the necessary information and has been recorded in the county where the real estate is located.
Wyoming law assumes that a trust is revocable unless it is expressly made irrevocable. The settlor of a revocable trust retains the right to revoke, amend, or add property to the trust as long as the settlor has adequate capacityโjudged under the same standard required to create a will. A settlor revokes or amends a revocable trust using the method specified in the trust instrument. Or, if the trust instrument does not specify a method (or the method is not exclusive), the settlor can revoke or amend the trust through a signed writing, through the settlorโs will, or using another method that provides clear and convincing evidence of the intent to revoke or amend the trust.
Wyoming trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purposes become unlawful or impossible to achieve.ย A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries. Upon petition, a court may also reform or modify the terms of a trust to correct mistakes or achieve the settlorโs tax objectives.
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Estate Taxes: Wyoming does not impose either estate or inheritance taxes.ย Large Wyoming estates may still be liable for federal estate taxes.
Simplified Probate:ย Wyoming law allows rightful successors of personal property within qualifying Wyoming estates to obtain possession of the property outside probate. To obtain personal property, the successor executes a compliant affidavit that sets forth specific information required by lawโsuch as the successorโs relationship to the decedent, the successorโs right to recover the property, and the status of any personal representative appointment. A successor can use an affidavit to recover personal propertyโincluding bank accountsโif the value of the estate (after liens and encumbrances) does not exceed $200,000, and at least 30 days have passed since the decedentโs death.
Wyoming also provides a procedure for summary distribution of property within qualifying estates with a net value not exceeding $200,000. An interested person submits an application for summary distribution to the probate court. The application includes specific information required by statute and provides a description and valuation of any real estate or mineral interests in the estate. If the application is granted and there is no objection, the probate court enters a decree establishing the right and title to estate property.
Non-Probate Transfers:ย Along with living trusts, Wyoming law offers multiple other estate-planning options for transferring assets outside of probate. POD (payable-on-death) and TOD (transfer-on-death) designationsโwhich provide for automatic transfer of an asset to a named beneficiary upon the ownerโs deathโare authorized in Wyoming for several asset types.ย POD designations can be added to financial accounts and CDs. TOD designations are often used with registered securities, brokerage accounts, and similar financial assets.ย ย
Joint ownership provides another means of bypassing probate.ย Assets co-owned as joint tenants with right of survivorship automatically transfer to a surviving owner upon the other ownerโs death. Wyoming also recognizes tenancy by the entiretiesโa joint ownership form with a right of survivorship only available for married spouses. Wyoming allows co-owners to own both real and personal property as joint tenants or tenants by the entireties.
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Wyoming law authorizes TOD designations on real estate deeds. When an owner of Wyoming real estate records a transfer-on-death deed (sometimes called โTOD deedโ or โbeneficiary deedโ), the named beneficiary takes title to the property upon the ownerโs death with no need for probate. A TOD deed does not affect the property ownerโs rights in the property during life, and the beneficiary does not acquire present rights in the property until death actually occurs.
Wyoming law does not authorize TOD designations on titles to Wyoming-registered vehicles.
Spousal Shares: To protect against disinheritance, Wyoming law affords a surviving spouse the right (waivable by a valid pre- or post-nuptial agreement) to claim a spousal elective share in a decedent spouseโs estate.ย The elective share amount is one-half of the net estate (after administrative expenses, funeral costs, allowances and exemptions, and estate claims) if the deceased spouse has no surviving children or grandchildren (called โissueโ in the statute). The elective share is also one-half of the net estate if all the deceased spouseโs surviving issue are also the surviving spouseโs issue. If the deceased spouse has surviving issue who are not the surviving spouseโs issue, the surviving spouseโs elective share is one-fourth of the net estate.
A surviving spouseโs share if the deceased spouse is โintestateโ (i.e., left no will) depends on whether the deceased spouse has children. The surviving spouse receives the entire estate if the deceased spouse has no surviving children. The surviving spouse receives one-half if the deceased spouse leaves surviving children.
Wyoming law also affords a surviving spouse a right to a homestead within the deceased spouseโs estate.
Wyoming Spendthrift Trusts: Although the general rule is that creditors of a trustโs beneficiaries can attempt to attach a beneficiaryโs interest in a trust, Wyoming law protects beneficiary interests from attachment if a trust provides for discretionary distributions or includes a โspendthrift provision.โ A spendthrift provision is a term within a trust instrument restricting beneficiariesโ right to transfer their interests in the trust.ย If a spendthrift provision is present, most creditors of beneficiaries cannot attach trust assets until actually distributed to the beneficiary. Spendthrift provisions do not prevent attachment for satisfaction of child support obligations.
Creditors of a Wyoming revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims). Subject to a few exceptions such as qualified spendthrift trusts (described below), creditors of an irrevocable trustโs settlor can attach the maximum amount of trust assets that could be distributed to the settlor or for the settlorโs benefit.ย ย
Wyoming Domestic Asset Protection Trusts (DAPT): Wyomingโs trust laws provides exceptionally strong protection against creditors by authorizing โqualified spendthrift trustsโโcommonly called โdomestic asset-protection trustโ or โDAPT.โ A Wyoming DAPT is an irrevocable spendthrift trust that can be โself-settled,โ which means the settlor is also a beneficiary. Self-settled spendthrift trusts are not permitted or do not protect against creditors under the laws of most states.ย ย
Once transferred to a Wyoming DAPT, assets are protected from most creditor claims other than child-support orders. A court may also permit attachment upon a finding that assets were transferred to the trust to defraud creditors or were listed on a credit application submitted to the creditor.ย
Though a Wyoming DAPT must be irrevocable, the settlor can maintain a relatively high level of control over the trustโincluding by reserving the right to receive distributions of trust income and some principal, veto distributions, appoint and remove the trustee, advise on trust investments, and use real estate held in the trust (subject to limitations).
To be effective, a Wyoming DAPT must meet several specific statutory requirements.ย Among other things, a Wyoming DAPT must have a Wyoming-domiciled trustee and its trust instrument must declare that the trust is a qualified spendthrift trust governed by Wyoming law. The settlor must also execute a sworn affidavit attesting that, for example, the settlor holds lawful title to transferred assets, will not be made insolvent by the transfer, does not intend to defraud creditors, does not have legal actions pending or threatened against him or her, and is not delinquent on child support payments.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
