The trusts wills create
Some will trusts are deliberate: a discretionary trust for a child with a disability, designed to provide flexibly without disturbing entitlements and supports, and demanding careful drafting and administration to achieve it; a life interest to a second spouse balancing provision against the first family's inheritance; land held for grandchildren. Others arise by operation of drafting: gifts to minors that must be held until majority, contingent gifts awaiting an age or event, and the statutory trusts that intestacy imposes for minor beneficiaries. The personal representative's job includes recognising which structures the will has actually created, funding them correctly, and transferring assets to the trustees with proper documentation; the tax treatment of trust funding and of ongoing trust property is a matter on which specialist tax advice should be obtained.
Trustees' duties
Trusteeship is an office of duty, not honour. Trustees must know the trust instrument, act within its powers, hold the balance impartially between beneficiaries, life tenant and remaindermen have opposed interests by design, invest with the care the law requires, keep accounts, and avoid conflicts and self-dealing absolutely. Lay trustees of family trusts, siblings holding for a vulnerable brother, a surviving parent holding for children, frequently carry these duties for decades with no professional support, and much of this practice's trust work is exactly that support: annual reviews, documented decisions, distribution frameworks for discretionary trusts, and the paper trail that protects trustees when a beneficiary later questions the stewardship.
Trusts over farms and land
The South-East's recurring trust asset is land. A life interest to the widow with remainder to a son; land held until a grandchild is reared; a farm in trust because the intended successor was too young at the date of the will. Land trusts concentrate every trusteeship problem: the tension between the life tenant's income and the remainderman's inheritance, repairs and improvements and who bears them, whether and when trustees should sell, and the interaction with farming schemes and entitlements that assume an active farmer. Trustees of agricultural trusts need working arrangements documented with the same rigour as any letting, and periodic review against the trust's actual purpose.
Varying and ending trusts
Trusts outlive their sense. Beneficiaries grow up, needs change, a structure built for a problem that no longer exists becomes pure cost. Where all beneficiaries are ascertained, adult and agreed, a trust can generally be brought to an end and the property distributed; where they are not, variations may need court approval on behalf of minors or unascertained interests. Winding up a trust, like establishing one, has significant tax consequences on which specialist tax advice should be obtained, and the documentation, deeds of appointment, retirement of trustees, receipts and indemnities, deserves the same care as the original will.
Frequently asked questions
The will leaves everything in trust for my brother who has a disability. What does that involve?
Typically a discretionary trust: trustees hold and apply the fund flexibly for his benefit. Trustees need to understand the deed, keep accounts, make documented decisions and take advice on how distributions interact with his supports and entitlements. Ongoing professional support is usual and sensible.
Do trustees have to be professionals?
No, family trustees are common and lawful. But the duties are the same for everyone, and lay trustees are well advised to retain professional support for decisions, accounts and reviews.
Can a will trust be ended early?
Often yes, where all beneficiaries are adult, ascertained and agreed; otherwise variation may require court approval. Tax consequences arise on winding up, and specialist tax advice should be obtained first.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.