How Does Probate Work when there’s a Will Trust?

08 July 2019

While the presence of a Will Trust won't necessarily have a big impact on the Probate process, the assets contained within that Trust may do. The terms and contents of the Will Trust all determine how Probate works.

The world of Trusts, whether created by a Will or by other means, can seem confusing and complicated to families going through the Probate process. By understanding a few points about Trusts, this article aims to provide more confidence and show you how Co-op Legal Service's Probate Specialists can assist.

What Are Will Trusts?

Will Trusts can be deliberately and explicitly included in the terms of a Will, often to effect very specific instructions of the testator (Will maker). Alternatively, Will Trusts can sometimes arise from a Will because of a certain set of circumstances which means a Trust is formed.

Some common forms of Trust which are likely to arise in a Will are as follows, but of course this is not an exhaustive list:

Whatever the type Will Trust, your Co-op Probate Specialist will be able to talk you through the specifics of the Trust and how it impacts the administration of the Estate. They will also be able to point you in the right direction in relation to the next steps to take.

So, you are an Executor of an Estate, and you are aware that a Will Trust exists. It's likely that you will have questions on how this effects your role as Executor, and these are considered below.

Do I Need Probate to Deal with a Will Trust?

Whether or not Probate is required depends on the type and value of the assets in the Estate. This is regardless of whether those assets form part of the Will Trust. To find out if Probate is required on an Estate, take our short quiz.

Who is Responsible for the Will Trust?

The Executors are responsible for setting up the Will Trust.However, the ongoing administration and governance of the Trust is the responsibility of the Trustees. This is separate from the Estate administration.

Often the appointed Executors and Trustees will be the same people but it's important to note that these are two distinctly different roles.

Who Inherits the Assets Held in the Will Trust?

The term 'inherits' possibly confuses the way in which assets are dealt with via a Will Trust. The Trust takes control of the assets held within it (such as cash or property) but the beneficiaries of that Trust will ultimately benefit from the gifted assets. The role of the Trustee is to protect these assets for the beneficiaries.

This might mean that some beneficiaries benefit from the assets while they are still held in the Trust and others might benefit from the assets once the Trust period has ended. The specifics of this depends entirely on the circumstances of the Will Trust and the terms of the Will.

Will it Cost the Estate More to Deal with the Will Trust?

The inclusion of a Will Trust can make the Probate process more complex, and in some circumstances this could incur an additional cost. This is something to be aware of if instructing a Probate Solicitor who charges an hourly fee.

At Co-op Legal Services, we provide a fixed fee quote before any work begins, which will take the inclusion of the Will Trust into account. Once we have provided a written quote, that price will not normally change.

In conclusion, Will Trusts need to be set up effectively in order to complete Estate administration. At Co-op Legal Services, our Probate Specialists can help Executors to adhere to this duty. We can also provide some general information and guidance to the Trustees.

If someone has died and you need help with probate, contact us:

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