In an ideal world just having a will would allow you to pass away at a ripe old age, secure in the knowledge that your loved ones will be taken care of and your estate will be distributed according to your wishes.

Life, however, does not always go as planned. What happens if you die suddenly, leaving behind young children who would be unable to deal with a large inheritance? Or you want to leave assets to a loved one with a drug or gambling problem, who might squander any money you left to them? Or perhaps you have a blended family and you do not quite trust your spouse to provide for children from your previous relationship in the future.

‘A possible solution to these conundrums is a will trust. This allows you to appoint someone you trust to control your assets for the benefit of your chosen beneficiaries, without giving them free access to your cash,’ as Billie Richards, an Associate in the Private Client team at WBW Solicitors in Exeter explains.

There are several types of trusts that can be set up via your will, and the type you choose will depend on your particular circumstances. If you have young children, for example, a bare trust may be the most appropriate. With this type of trust, the beneficiary is entitled to both the income and capital of the trust, but the trustees manage both to ensure the child is well provided for until they come of age and can claim their full inheritance.

With a discretionary trust you name a class of beneficiaries (for example, your family members) and no beneficiary has an absolute right to the income or capital of the trust. It is up to the trustees to distribute the income and capital of the trust to the beneficiaries as they see fit. Such a trust can clearly be used to ward off gold-diggers and to prevent a family member blowing all the money on bad habits, but can also be used where you have a business which you would like your trustees to run.

A life interest trust, meanwhile, might be appropriate for a blended family. It allows you to name your spouse, for example, as your beneficiary and give them the right to the income of the trust or the right to enjoy an asset of the trust (to live in the family home, for instance) until their death. After that, the trust assets would pass to other beneficiaries of your choice (such as your children).

Every trust is run by the trustees you nominate and you can give them guidance on how you would like the trust to be run in your will. You can choose one or more people to act as your trustees, but having more than one is usually advisable, in case one dies or loses mental capacity to act as a trustee. In addition, if the trust contains property as an asset, at least two trustees are required to deal with the legal ownership of the property.

A trustee shoulders a lot responsibility so you should choose your trustees wisely and ensure in advance that they are willing and able to undertake the role. Trustees have a legal duty to act according to the terms of the trust as set out by you; a duty to act fairly towards the beneficiaries; and a duty of care under the Trustee Act 2000 to ‘exercise such care and skill as is reasonable in the circumstances.’

If they fail in any of these duties, it is open to a disgruntled beneficiary to apply to the Court to have them replaced. Disputes could arise, for example if a beneficiary feels they should be entitled to more; or if a trustee is suspected of acting fraudulently or incompetently, against the best interests of the beneficiary, or contrary to the terms of the trust.

How our solicitors can help

Our team of expert wills and trusts solicitors can help you select the right trustees and then draft your will according to your wishes. They will explain your options and set up any trusts required, ensuring that the terms of both the will and trusts within it are valid, clear and less open to any challenge.

For more information on wills, probate, or any other private client issue, contact us.

WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.