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What is a Will trust and how does it work?

A Will on a tabletop with a sand timer and pen, signifying what is a will trust and how does it work

A Will trust is a trust that’s included in a Will or created automatically by the wording of a Will. A very simple trust for children, for example, is created by a basic Will. More complex, protective trusts can also be included in your Will. So what is a Will trust and how does it work?

Before you read on, it’s a good idea to understand the basic ideas behind trusts in general, which are explained in this longer article: Trusts in estate planning.

In its simplest form, a trust involves money being held for someone until they reach a certain age. By default this age is 18. If a parent of a child dies when the child is still under 18, any money they inherit will be held in trust for them until they reach that age.

But many parents prefer children to inherit at the age of 21 instead of 18 in the belief that they will be more responsible when they’re a bit older. So they write that age in the Will instead.

This being the case, the trustees named in the Will hold the child’s inheritance until the child reaches the age of 21. That doesn’t mean they have no access to the money. There are powers in the law, and potentially also in the Will itself, that allow their surviving parent or guardian with income and capital for the child’s education, for example.

Why add a trust to a Will?

Other, more complex trusts can also be included in a Will. Typically they are given a dedicated section of their own in the Will. It might have its own sub-heading that tells you what’s going into the trust – typically this would be property or money.

So why would you do this?

Consider the simple case of a basic Will that names your children as your beneficiaries. When you die, they inherit the money and other assets directly. After estate administration has been sorted out, assets go straight into their possession.

But inheriting a large sum of money could cause problems for them. Consider what would happen if:

  • Your children are going through a divorce
  • Your children are vulnerable
  • Your children are not capable of looking after money

As a result, your children’s inheritance could be wasted.

Or what if:

  • Your children are living abroad when you die
  • Your children are high earners

By inheriting directly from you, they could lose money in tax. Inheritance tax in this country, or overseas taxes in the country they’ve emigrated to.

But let’s say you’re married and pass everything to your spouse in your Will. When your spouse dies, everything goes to children. But what would happen if:

  • Your spouse meets a new partner or remarries
  • You have children from a previous relationship
  • Your spouse goes into care

All of these could mean that some, or all, of your children may be disinherited.

Benefits of a trust Will

The advantage of a trust in your Will is that your assets won’t pass directly to another person. Instead, when you die, the assets protected by the trust are managed by trustees.

Instead of going directly to the beneficiaries, the trustees manage the inheritance. Your “instructions” to them are contained in the Will or a separate letter alongside the Will.

So how does a Will trust work?

There are various types of Will trusts and they work in different ways because they have a different purposes:

  • A property trust protects all or part of a property
  • A life interest trust gives someone the right to income from an asset
  • A discretionary trust protects all or part of an estate
  • A vulnerable person’s trust has tax advantages for someone receiving certain state benefits
  • A flexible life interest trust often combines elements of a life interest with a discretionary trust

Once you have passed away, the instructions in the Will are put into effect. So for example, the trust might say that half of the property is held on trust for the benefit of beneficiaries. This might only require a change of the title deed at Land Registry.

If there is income from the property, the trustees will have to manage that income. The trust will say who has a right to the income, and the trustees have a legal duty to provide it. With income, there will also be tax to pay – either by the trustees or by the beneficiary.

If there ia a trust containing money, the trustees will have to look after that money – for example, by opening an trust bank account and managing it for the benefit of the beneficiaries.

Who are the trustees?

Trustees are named in the Will and are often the same people as the executors of the Will. Trustees are often trusted family members and friends. They can also be a professional, such as a solicitor.

A trust typically has two trustees and this is what protects your assets because they have to make joint decisions.

For this reason, the choice of trustees is also crucial. You should choose trustees who get on with each other and would be able to work together.

Summary

What is a Will trust and how does it work? A Will trust avoids your assets being inherited directly by your chosen beneficiaries. In my experience, there may be good reasons why children would not want to inherit immediately, not all of which you can foresee (for instance, if your get divorced in future).

There are different types of Will trust offering varying levels of protection for different assets. Some trusts protect only property for a limited period while others protect the whole of your estate and can be managed by trustees who can make the best decisions both at the time of your death and later on.

The information contained in these articles is for general interest purposes only. We take every precaution to ensure that the information is correct at the time of publishing but errors can occur. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in the information. Bristol Wills & Estate Planning Ltd is not responsible for any errors or omissions or for any results obtained from the use of this information. You should never rely on the information in these articles as a substitute for professional legal advice, whether from Bristol Wills & Estate Planning or any other legal service or professional.

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