Will Writing

Do I need a Trust in my Will?

In order to know if there is likely to be a need to create a Will Trust within your Last Will and Testament. The first thing you should consider is your wishes for the distribution of your estate upon your death.

If your wishes for the distribution of your estate are quite straightforward then it is likely that there is no need to create Will Trusts. There are however some situations which may require you to have a Will Trust created:

Here are some examples of situations when you may require a trust to be written within your Will:

Interest in Property Possession Will Trusts

These are often used by married couples and civil partners, when they own their main family home on a tenants in common basis, with the ownership of the home split 50 /50.

Instead of leaving their share to each other on death, it’s left to the trust on the death of the first spouse/partner.

This is very useful when someone who has remarried and has children from a former marriage because it allows their spouse/partner to remain in the property until they pass away or are unable to or no longer wish to.

At which point the share of the property will pass to the named beneficiaries from the former marriage.

Future Care Home Costs & Using Will Trusts

As mentioned above, If you have a will trust and your spouse or partner dies, the surviving spouse retains a right to remain in the family home.

Should the surviving spouse or partner then need to move into residential care, only their share is assessed by the local authority, not the first spouse’s or partners share because this is now already in trust.

This means 50% of the property is protected from care home costs.

The Government has guidelines regarding this called (CRAG) Charging for Residential Accommodation Guide.

The guide suggests that this arrangement will not be contested as a deliberate deprivation of assets.

Sideways Disinheritance

Again as mentioned above creating a will trust also avoids sideways disinheritance which can occur with a Will that does not have a trust written within it.

For example, if a partner remarries and fails to make provision for their children in a new will, upon their death, according to the law of intestacy the share children would have rightfully inherited would legally transfer to the new surviving spouse or partner.