TrustsWillsSetting up a Will-Based Trust After Death

2 March 2018by WillPack4
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It has been brought to our attention that there are some misconceptions in regards to what action needs to be taken for a Will-based trust after the death of the Testator. The following article is intended to clarify these points.

A trust in a Will, such as a Protective Property Trust, Flexible Life Interest Trust or Discretionary Trust, is not automatically set up on the death of the client. The Will trust is not itself the trust, it is more of a direction that a trust of those terms is set up upon the client’s death. There are further actions which need to be taken by the executors upon the Testator’s death in order to set up the trust and clients should be made aware of these steps.

A formal trust deed would need to be drawn up on death to create the trust. This will most likely refer to the clauses of the Will in which the trust is written and will have a copy of the Will attached to it. There would also be further steps such as appointing the trustees and transferring the trust assets to them (including any relevant land registry work should the trust include land).

This is a process that is required and without additional work being completed on the client’s death, the trust would not be created.

There will of course be costs to estate to complete this work. We cannot advise exactly how much this will be as it will depend on the local area and the date of death. As an example, SWW Trust Corporation at the time of writing charge £550 plus VAT and any Land Registry fees to set up a property trust on death.

Much of setting up a trust, such as the trust deed itself and any relevant land registry work, are reserved legal activities and therefore a solicitor would need to be involved at some stage in this process.

4 comments

  • David Heilbronn

    6 March 2018 at 1:56 pm

    If the trust is not be registered on first death, then should the survivor go into care could the LA sell the property to pay for the care fees?
    Thank you David Heilbronn

    Reply

    • WillPack

      6 March 2018 at 2:00 pm

      Unfortunately, we cannot provide technical advice through the website.

      Reply

    • Peter Hanley

      15 November 2020 at 9:12 am

      Don’t know the answer to this
      Would be nice to know thanks

      Reply

      • WillPack

        15 November 2020 at 9:27 am

        Unfortunately, we cannot provide technical advice through the website. If you are a WillPack partner please email your query to [email protected] and a member of the team will respond.

        Reply

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