Mirror Wills

[Jason123456]

Can a Will be set up that is as simple as ensuring surviving spouse inherits whole of estate.I realise Executor(s) need to be included into a Will to administer the estate,but is it necessary that these Executors are also Trustees?

[AGoodman]

Wills can be simple yes but most will writers will want to bear in mind different possibilities - say for example the spouse dies before, or at a similar time to, the person making the will. Who will benefit then? People may not be able to write a new will at the time, due to illness, loss of capacity or simply not getting around to it.

Many wills refer to "trustees" but that is just common form. Something like the above would not establish a trust in the usual meaning of the word. They could become proper trustees if the estate ended up passing to a minor in which case, by default, the executors/trustees could retain the funds until the child turned 18.

[Jason123456]

But if the Trustees hold all or part of the estate ‘on trust’ (wording in Will) doesn’t this make it formal,and the estate no longer belongs to the surviving spouse but is now in the hands of the Trustees within a Trust?,and would need to be managed and can only be loaned to the s.spouse. I would want to try and avoid this.

[AGoodman]

Not usually no. You would only get a proper trust scenario if the will sets out actual trust provisions - i.e. they hold the assets for the wife for life.

The default meaning, where everything is left to a beneficiary outright, is really just a term of art.

[AnthonyR]

Just because someone holds something on trust it doesn't mean that a standalone trust is created.

If I lend you my pen you are holding it on trust for me, because it's my pen and you're only looking after it.

Many Wills state that the executors/trustees hold the assets on behalf of husband/wife/son/daughter absolutely. This means that there is a bare trust which in practical terms isn't really a trust (as many people would understand) at all, just a custody arrangement.

If there is a life interest or discretion as to how the assets are held then this would be a more formal trust, but this will depend on the terms of the Will and has various tax effects.

[Jason123456]

Just because someone holds something on trust it doesn't mean that a standalone trust is created.

If I lend you my pen you are holding it on trust for me, because it's my pen and you're only looking after it.

If that’s the case,why have Trustees?

[AnthonyR]

Either because you want to retain control and establish a trust, or because someone can't look after the assets themselves (ie disabilities or minors).

Will terminology can often cause confusion as well because the Executors are appointed to administer assets on behalf of the estate and hold the assets on trust on behalf of the beneficiaries (which makes them de facto trustees anyway). The Will may then also appoint them (or others) as trustees as well where more formal trusts are established. Quite often the terms are used interchangeably within Wills, particularly where there are trusts formed.