Why You Should Not Ignore a Trust in a Will

I recently met with a family who had lost their elderly mother. The daughters explained to me that they were busy arranging for everything to be transferred to dad, because they ‘knew that’s what mum wanted’. They wanted help making sure their parents’ property was held in dad’s sole name going forward.
I asked if I could see a copy of the will. I explained to the daughters that in fact, mum had not left everything to dad. The will set up a trust that gave dad the right to the income from mum’s assets only. The daughters admitted that they had found the terms of the will confusing and, rather than seeking advice to have the will explained, they had assumed that they knew what mum had wanted and done that.
When someone passes away, the importance of their will cannot be overstated. A will is a legal document that outlines how their assets should be dealt with. However, a will may contain provisions regarding trusts that often go unnoticed or misunderstood, and this can have serious consequences.

Why Trusts Are Ignored

One of the main reasons that trusts in wills are disregarded is a lack of understanding. As much as lawyers try to use plain English where possible, the language used in wills can be complex and it can be challenging for people to grasp. Some people find the terms used in trusts too complicated and intimidating, and this discourages them from considering the document any further.
There can be a mistaken belief that getting legal advice on the interpretation of a will is not needed. Families may believe that they already know what their loved one wanted and feel confident in handling matters themselves.

Consequences of Ignoring Trusts

Ignoring a trust in a will can have significant repercussions, particularly if some time has passed before it is addressed. This can be as simple as causing more work for the surviving family members, including difficulty determining what assets form part of the trust. As time passes, important documents may be lost or misplaced. 
The consequences can, however, be more serious. Assets may be paid out to the wrong beneficiary – leaving the trustees personally liable for their incorrect actions and facing angry and disappointed beneficiaries looking for payment of their inheritance. Tax may become due that, with proper trust management, could have been avoided.
Furthermore, since 2022, most trusts have now to be registered with HMRC, who have the power to levy fines when this is not done.
In conclusion, trusts in wills serve important purposes and should not be overlooked. There is always a good reason for why a person includes a trust in their will. Following their wishes is not only legally necessary, but also the final way to respect what they wanted.
Seeking professional legal advice to understand and properly administer trusts ensures families can navigate the complexities of estate planning with clarity and confidence.

Susan Fairless

Partner in the Private Client team based at Everys Solicitors’ Taunton office

Susan qualified as a solicitor in 2005 and is an Accredited member of the Association of Lifetime Lawyers (ALL) and the Society of Trusts and Estate Practitioners (STEP). Susan joined Everys in 2022 and advises clients on a wide range of private client matters, including wills, lasting powers of attorney, estate administration, trusts, and succession.

Everys Solicitors is an independent law firm whose roots stretch back more than 200 years. Originally established in Honiton to cater for the local farming community, Everys has expanded over the years to now include eight offices within East Devon, Mid Devon and Somerset. Everys is a full-service law firm providing legal advice to individuals, families and businesses.