Trusts
Trusts in your Will are a way of passing on assets after your demise in a way that gives you some control.
Trusts can be used to ensure that inheritances proceed to grandchildren no matter who your children marry or to ensure that children do not inherit until a certain age.
They can also be used to give inheritance in a way which does not affect the benefits someone receives or to provide for someone without giving them an absolute entitlement, this may be useful if they have difficulties with creditors, are not very good with money or have problems with addiction.
Protective Property Trust
You may wish to include a Protective Property Trust in your Will if:
- You do not wish to leave your share of your property to your spouse/legal civil partner/partner but would like to give them the right to live in the property for the rest of their lives, before the property passes to your children.
- You want your Will to contain a provision that upon your death, your share of the property put in trust allowing your spouse/legal civil partner/partner to continue to live in the property for his/her lifetime, but upon his/her death, to be given to your children. In this way, you can make provision for your spouse/legal civil partner/partner, whilst protecting your share of the property for your children.
- You are worried that you may need care in the future, when your local authority may have the right to sell your home and use the proceeds to meet the costs of your care. You cannot transfer your property to relatives to avoid paying care home fees, without falling foul of the law, but you can include a Protective Property Trust in your Will, containing instructions that upon your death your share of the property is put in trust for your children instead of passing direct to your spouse/legal civil partner/partner. In this way the share of the property that has been put in trust is protected and the surviving spouse/legal civil partner/partner may continue to live in the property. That share cannot be taken by the local authority for care home fees of the survivor. On the death of the surviving spouse/legal civil partner/partner the share held in trust will pass to the children.
If your property is held as a joint tenancy then it will be necessary to change this to a tenancy in common – we can do this for you.
- Joint tenancy – this is where the parties own a property together and upon the death of one person the property automatically passes to the survivor whatever the Will says.
- Tenancy in common – this is where each person owns part of the property in their own right and can leave their share to whoever they like.
Trust for Children
If you have children, you may wish to make provision for them, in case you should pass away before they reach 18. If this is the case, you may wish to include a trust in your Will.
Discretionary Trusts
A Discretionary Trust is a very versatile Trust and can be used for many purposes, either during your lifetime or as a provision in your Will.
You will decide upon and appoint Trustees and beneficiaries for the Trust and you will decide what assets you wish to put into the Trust. Your appointed Trustees will then administer the Trust. However, you should be aware, that assets put into a Trust, belong to the Trust, they do not belong to your appointed beneficiaries and if you are setting up a lifetime trust you cannot get assets back, once you have put them into the Trust. We can advise you on this.
The reason that the Discretionary Trust assets do not belong to your appointed beneficiaries is because the Trustees of a Discretionary Trust have the absolute discretion to decide how the Trust assets are used and are under no obligation to treat all your beneficiaries equally. Choice of Trustees is very important. As Solicitors regulated by the SRA we can be appointed to give you confidence that your wishes will be dealt with.
If one of your beneficiaries is claiming welfare benefits, their benefits will not be affected by their being the beneficiary of a Discretionary Trust.
It may be useful if your beneficiaries have difficulties with creditors, are not very good with money or problems with addiction.
Please contact a member of our team on 01376 567275 to discuss your requirements with us.
FREQUENTLY ASKED QUESTIONS
The following are common questions we get asked about Wills and Probate. If you cannot find the answer here, please contact us for an answer.
Can I draft a Will myself or download it from the Internet?
We would strongly advise against drafting your own Will or downloading a pro-forma on line.
There is an increasing amount of litigation that arises from incorrectly drafted Wills, often Wills drafted by people who are not legally qualified do not do what the person drafting them thinks they do which can cause significant problems and delays in the event of your death.
Often, it ends up costing far more to rectify any errors than the cost of a Will professionally drafted.
Can I have Cunningtons as my Executor?
Yes, we can act as Executors for you. Professional Executors will charge for acting.
Can you store my original Will?
We can store your original Will free of charge in our Strong Room.
We will only release it to you during your lifetime upon receipt of your identification, to your Attorney in the event of loss of mental capacity if you have authorised your Attorney to have access to your Will under your Lasting Power of Attorney or to your Executors on your death upon receipt of your original Death Certificate and the identification and authority of all your Executors.
Do I need a Will?
If you are over the age of 18, have assets or children a Will is the only way to ensure that your wishes will be carried out in the event of your death.
How long does the process of writing a Will take?
Upon receipt of your instructions we aim to send you a draft of your Will for your approval within 7 days.
If there are no unforeseen circumstances it is likely that your Will will be signed within a month of us receiving instructions from you.
How often should I review my Will?
A Will should be reviewed whenever your personal or financial circumstances change significantly or if your beneficiaries’ circumstances change significantly.
We recommend that you review your Will at least every five years to ensure it still accords with your wishes and is still appropriate for your circumstances.
We are a couple, can we have a joint Will?
Joint Wills are very rare and problematic these days. It is more usual to have Mirror Wills which is where you each have a Will but on similar terms. It is important to bear in mind that with Mirror Wills once you have left your estate to your partner, your partner is then free to do whatever he or she wishes with your assets, they could leave what they have inherited from you to a new partner. For more information please see Asset Protection Trust.
What is a Guardian?
A Guardian is a person or people who will look after your children in the event of your death, they will be responsible for bringing up your children.
What is a Will?
A Will is a legal document which sets out what you would like to happen to your assets in the event of your death, who you would like to administer your estate, who you would like to look after your children and your funeral wishes.
What is an Executor?
An Executor is a person who will administer your estate in accordance with the terms of your Will, they will complete relevant tax returns and apply for the Grant of Probate before collecting in the assets and distributing them to your beneficiaries.
An Executor can be anyone over the age of 18, it is important that you appoint not only someone that you trust but someone who is capable of handling the administration of your estate in what is likely to be an emotional and stressful time.
Before appointing an Executor you may wish to discuss the matter with the person or persons involved to ensure they are willing to be named as Executor in your Will, although this is not essential and as the Will is personal to you, you might not wish to disclose details to an Executor.
If you appoint someone other than your Solicitor and they refuse to carry out the duties after your death then problems could arise.
FURTHER INFORMATION
Making Your Will
To get started on writing your will, please click here to download our Will form, then print it out and complete it before sending it to us.
November Free Wills
Cunningtons support the Will Aid charity every November by offering to help with free simple wills.
Wills & Probate Partner
Meet Bryony Wilmshurst, Partner in charge of our Wills and Probate department.