What are the different types of wills & will trusts?

1. Single will

A single will is a will for one person. It is the type of will most people think of when it comes to will writing. Generally, they are for people who are single or divorced, but you can make a single will whether you have a partner or not.

They are also used when a couple have different wishes as to how their respective estates will be distributed on their death; or when a person has children from a previous relationship and they want to provide for them all. However, in this case a trust will may be a better option.

A single will allows you to specify:

  • Who you want to deal with everything for you (known as an executor)
  • The people you wish to benefit and how your estate is to be distributed,
  • Detail any gifts of personal items you wish to make and any cash gifts
  • Appoint a guardian for your children who are under 18
  • Your funeral wishes.

If you die without a will in England & Wales the intestacy rules apply, meaning the law sets out who will inherit your assets. The intestacy rules set out a specific order for who inherits and ultimately if you have no living family members then under the intestacy rules the Crown can inherit everything.

2. Mirror wills

If you and another person, such as a spouse or partner, want your wills to say the same thing, it is cheaper to make a pair of mirror wills. These are often referred to as a joint will but they are, in fact, two separate documents; one for each person, which ‘mirror’ each other. Mirror wills are practically identical except for the name of the person making it and any funeral wishes.

It is common for mirror wills to leave everything to the survivor and then on the second death to one or more named beneficiaries such as the children or step-children of the couple.

Within your wills you would specify:

  • Who you want to deal with everything for you (known as an executor)
  • The people you wish to benefit and how your estate is to be distributed,
  • Detail any gifts of personal items you wish to make and any cash gifts
  • Appoint a guardian for your children who are under 18
  • Your funeral wishes.

With straightforward mirror wills, there is the advantage of keeping things simple, but one thing to be aware of is the degree of trust involved and the fact there is no guarantee your estate will pass to your ultimate beneficiaries. The surviving spouse or partner is entitled to change their will, even if you have left everything to them on your death. They can leave their estate to their own children so could cut out step-children, or, if they remarry, they can leave everything to their new spouse. There have been many sad cases involving step-children being cut out of their step-parent’s will.

Another risk factor with a basic mirror will is that there is no control over the ultimate destination of the assets. So, for example, if one of your children developed a drug or alcohol dependency, they would still be entitled to their share as a lump sum and there would be no means of keeping it from them and protecting them from themselves.

All wills prepared by David Blank Furniss are stored free of charge.

3. Trust wills

What is a Trust Will?

There are lots of different types of trust wills. A trust can be included within your will to offer protection for your assets. Estate planning is not just about reducing inheritance tax, it is also about ensuring the future succession of assets and providing peace of mind that your family and loved ones will be properly cared for after your death.

Trust Wills are very useful as they allow you to protect your family. You should consider using a trust in the following situations:

  • You want to provide for your spouse or partner but you also wish to provide for children from a previous relationship in the future
  • You want to protect against possible care fees in the future
  • You want to provide for minor children or vulnerable beneficiaries

Trust wills allow you to support your beneficiaries – either by providing for education or other support, or by protecting them from losing assets (through divorce or bankruptcy for example) or from inheriting too early. A person (known as a Trustee) is appointed to manage the assets held by the trust. The terms of the trust are set by you as the person creating the trust. Will trusts only come into effect on your death though – you are free to do what you want with your assets during your lifetime.

4. Property trust wills

These are of the most common types of trust will. Property Trusts are used where a couple wish to provide a home for the survivor but ultimately wish to pass their respective shares of the family home to their children (whether children of the marriage or children from a previous relationship). The trust only comes into effect on the death of the first partner.

These will trusts also shelter the assets of the first to die if the survivor was to require long term residential care. However, it cannot be used solely for this purpose.

A property trust, if properly drafted, ensures that at least half of the property of the first to die passes to the children. The half of the property belonging to the first spouse passes into a trust providing for the surviving spouse to live there for as long as he or she wants (rent-free of course) but they do not own the entire house so on their death it does not form part of their estate. The benefits of this include ensuring the half of the house pass to the children, regardless of whether the survivor remarries or changes their will, but also that if the survivor was to move into residential care, the half of the first spouse to die does not form part of their assets and so cannot be forcibly taken to pay for their care.

This type of will is best suited to couples who want to ensure their children receive at least half the value of their house but wish to ensure their surviving partner or spouse can continue to live in and benefit from your share of the property upon your death.

5. Discretionary trust wills

Also commonly known as bloodline wills or family trust wills, a discretionary will trust is an extremely flexible form of trust. It allows a pool of beneficiaries to benefit from the trust assets. It may not be the right time for beneficiaries to inherit due to:

  • Their age
  • Disability
  • Undue influence from friends or a partner
  • Drug/alcohol dependency
  • Gambling addiction
  • Bankruptcy
  • An impending divorce

By using a discretionary trust, it is the trustees who decide who should benefit and when it is the appropriate time. They are guided by a letter of wishes left by you with your will. Within your will, you name the intended beneficiaries but ultimately the trustees choose how to manage the trust so it is important you choose trustees who are responsible and will make the best decisions for the beneficiaries.

A discretionary trust can affect all of your assets or just some of them. They are particularly useful for preserving any available Business Property Relief (BPR) or Agricultural Property Relief (APR) which may be available.

6. Statutory wills

Statutory wills are governed by the Court of Protection, which is a specialist court set up to protect the interests of people who cannot make decisions for themselves. If you are acting on behalf of someone else as an Attorney or Deputy you may need to apply to the Court for a statutory will. A statutory will is used when a person does not have sufficient mental capacity to make a will, but a will would be helpful in ensuring any wishes the person has expressed can be carried out when they die. They can also be used for inheritance tax planning.

If you die without a will in England & Wales the intestacy rules apply, meaning the law sets out who will inherit your assets. The intestacy rules set out a specific order for who inherits and ultimately if you have no living family members then under the intestacy rules the Crown can inherit everything.

The process of applying for a statutory will is complicated but our Court of Protection specialists will guide you through every stage of the process. We will help to ensure the application progresses smoothly to reduce the stress in an already difficult situation.

7. Living wills (Advanced directive)

A living will is not a will in the traditional sense. Living wills do not deal with your assets. Instead, a living will is a document that sets out your wishes for future medical care if you are incapable of giving instructions yourself. They are used to specify your wishes for matters involving resuscitation, chemotherapy or blood transfusions.

They cannot be used to end your life; their purpose is to provide guidance to medical practitioners who are caring for you so that they know your wishes about life-sustaining treatment.

Living wills can also help the family members avoid feeling guilty about making a particular decision if your feelings have already been set out clearly in a legal document.

Living wills only deal with your wishes for medical care during your lifetime so you still need to ensure a separate will is in place to set out who should inherit your assets on your death.

Get wills & estate planning advice.

If you need any legal advice or assistance with regards to wills & estate planning, contact the Davis Blank Furniss team now.