Wills with Testamentary Trusts Service Terms

1. What is a testamentary trust?

A testamentary trust is a trust created by a will which normally comes into effect after the person who made the will dies. It may hold assets for one or more beneficiaries where outright inheritance is not appropriate or is not intended.

Examples may include trusts for minor children, trusts delaying inheritance until a specified age, discretionary trusts, life interest trusts, trusts for vulnerable beneficiaries and other will-based arrangements.

Not every client needs a trust. Whether a trust is appropriate depends on your wishes and circumstances, the assets involved and any specialist advice needed.

2. Scope of the service

Depending on your agreed instruction, the service may include:

• discussing whether a testamentary trust may be appropriate;
• identifying intended beneficiaries;
• discussing proposed trustees;
• discussing when and how beneficiaries should benefit;
• preparing relevant trust provisions within the will;
• preparing a draft will and reviewing it with you;
• preparing and supplying the final will; and
• providing signing and witnessing instructions.

The precise scope and price are confirmed in writing before work begins. Only agreed work is included. Ongoing administration after death is not included unless expressly agreed as a separate service.

The General Terms & Conditions and Will Writing Service Terms also apply. These terms add provisions specific to testamentary trusts rather than repeating those documents.

3. Testamentary trusts are not lifetime trusts

This standard service does not include:

• transferring assets into trust during your lifetime;
• lifetime property trusts;
• asset protection trusts;
• care-fee avoidance trusts;
• lifetime tax-planning schemes;
• conveyancing;
• transfer of land; or
• ongoing trust administration.

If you wish to create a lifetime trust, specialist legal and tax advice may be required. Do not treat this will-writing service as a lifetime trust arrangement.

4. Trustees

Trustees are the people who hold and manage trust assets after your death. You are responsible for choosing your proposed trustees. We may explain their role in general terms, but do not guarantee that a proposed trustee is suitable or supervise trustees after death.

Consider their age, reliability, willingness, location, relationship to beneficiaries, potential conflicts and ability to act jointly. Discuss the proposed role with them where appropriate and provide accurate details.

Clear Will Writing does not automatically act as trustee or accept appointment as professional trustee. Any such appointment would require a separate agreement under dedicated terms; this standard service does not create or promise one.

5. Duties of trustees

Once the trust comes into effect, trustees may have legal duties and responsibilities, including:

• administering the trust properly;
• acting in beneficiaries' interests;
• keeping records;
• dealing with investments;
• dealing with tax and reporting;
• distributing income or capital appropriately; and
• complying with the trust's terms and applicable law.

Our drafting service is not ongoing advice to future trustees. They may need independent legal, tax or financial advice to understand and fulfil their responsibilities.

6. Beneficiaries

You must identify intended beneficiaries and explain your wishes. Tell us about relevant circumstances, including:

• minor or vulnerable beneficiaries;
• disability;
• dependency or financial vulnerability;
• family conflict;
• children from previous relationships or stepchildren; and
• beneficiaries living abroad.

You decide who should benefit. We do not choose beneficiaries for you. We rely on the information you supply and may ask further questions or recommend specialist advice where necessary.

7. Minor beneficiaries

A testamentary trust may be used where a beneficiary is under 18 or where you wish inheritance to be delayed to a later age. You may need to choose:

• the age at which capital may become available;
• whether trustees can use funds earlier for education, maintenance or benefit; and
• who should act as trustee.

The effect depends on the provisions and applicable law. Delaying inheritance is not always appropriate; consider the beneficiary's needs and the proposed arrangement carefully.

8. Vulnerable beneficiaries

Where a beneficiary is vulnerable or has additional needs, more careful planning may be required. A testamentary trust may sometimes be relevant, but specialist advice may be appropriate about disability, means-tested benefits, care needs, capacity, safeguarding or long-term support.

Benefits advice and specialist tax advice are not included in the standard service. Any wider specialist service would require express separate agreement. Do not assume that a trust preserves benefit entitlement or meets every support need.

9. Discretionary trusts

Where a discretionary trust is used, trustees may have discretion over how and when beneficiaries benefit. Beneficiaries may not have an automatic right to a fixed share. Trustee powers must be exercised in accordance with the trust and applicable law.

We do not guarantee how future trustees will exercise discretion. A discretionary trust does not automatically protect assets from all claims, tax, creditors, divorce or care fees.

10. Life interest trusts

A life interest or similar trust may give one beneficiary a right to benefit during their lifetime, with capital passing to other beneficiaries later. The detailed effect depends on the drafting and circumstances.

We do not guarantee a tax result or that a life interest trust solves every property, inheritance or care-fee issue. Specialist advice may be necessary before choosing this arrangement.

11. Property and trusts

A testamentary trust may include property or an interest in property after death. Ownership structure matters: jointly owned property may pass outside the will, depending on the form of ownership.

Conveyancing, severance or other property-law steps may be required in some cases. A will or trust provision does not itself change ownership arrangements during your lifetime.

We do not provide conveyancing or reserved instrument work. Where ownership requires investigation or alteration, obtain appropriate specialist legal or conveyancing advice.

12. Tax

Trusts may have inheritance tax, income tax, capital gains tax, trust reporting or other tax consequences.

Numerical tax calculations are not included unless expressly agreed under an appropriate specialist service. Where tax may materially affect the arrangement, we may recommend an accountant, tax adviser or solicitor.

Do not assume a trust is tax-efficient merely because it has been drafted into a will. Any description of tax efficiency would need to be properly established in light of relevant circumstances and specialist advice.

13. Trust registration and reporting

Some trusts may have registration, reporting or tax obligations after they come into effect. This standard service does not include:

• registration of the future trust;
• Trust Registration Service filings;
• future tax returns;
• ongoing trust reporting; or
• trust accounts.

Future trustees may need specialist assistance once the trust is active. Drafting trust provisions is not an agreement to handle future filings or compliance.

14. Letters of wishes

Where appropriate, you may wish to provide a separate letter of wishes to guide trustees. It is normally guidance rather than part of the binding trust terms, should not contradict the will and does not replace properly drafted trust provisions.

Preparation of a letter of wishes is included only where expressly agreed in the scope. It is not automatically included, and we do not guarantee that trustees will follow every expressed preference.

15. Trustee powers

The will may contain powers allowing trustees to:

• hold assets;
• invest;
• pay income;
• apply capital;
• maintain beneficiaries;
• deal with property;
• appoint professional advisers; and
• exercise other administrative powers.

The precise powers depend on the drafting and applicable law. There is no blanket promise that future trustees have every possible power or can use powers without legal limits.

16. Professional advisers

Future trustees may need solicitors, accountants, tax advisers, financial advisers, property professionals or other specialists.

Such advisers would normally act independently and be responsible for their own advice. Our drafting fee does not include their future services or fees unless expressly agreed otherwise. A recommendation does not make their advice part of our standard drafting service.

17. Changes in family circumstances

Review testamentary trust provisions if circumstances materially change, including:

• birth or adoption of children;
• death of a beneficiary or trustee;
• divorce or separation;
• remarriage;
• disability or vulnerability;
• major changes in assets;
• business changes;
• moving abroad; or
• material changes in family relationships.

Unless separately agreed, we have no ongoing duty to monitor these changes or update the will automatically. Tell us about changes during the instruction and seek a further review when appropriate.

18. Changes in trustees

If a proposed trustee dies, becomes incapable, unwilling or unsuitable, you should review the will and consider who should be appointed instead.

We do not automatically appoint replacement trustees or monitor their availability. Any change to an executed will needs a legally effective process and an appropriate instruction.

19. Foreign assets or beneficiaries

Specialist tax or foreign-law advice may be needed where property is abroad, beneficiaries or trustees live abroad, or you have foreign domicile or residence issues.

We do not advise on foreign law within the standard service. Tell us about these circumstances before drafting so that appropriate advice or coordinated arrangements can be considered.

20. Complex or high-value estates

Specialist legal or tax advice may be recommended where an estate involves substantial assets, complex businesses, agricultural property, foreign structures, existing trusts, significant tax exposure, family disputes or sophisticated succession planning.

We do not undertake work outside the service's competence. We may limit or decline an instruction, or recommend specialist assistance, where the circumstances require expertise outside the agreed standard scope.

21. Potential claims against the estate

Using a testamentary trust does not guarantee that the will cannot be challenged, no estate claim can be brought, beneficiaries cannot dispute trustee decisions, or assets are protected from every future claim.

Where dispute risk is foreseeable, specialist legal advice may be recommended. Contentious probate work and representation in disputes are not included in the standard drafting service.

22. Asset protection claims

Such claims would be inappropriate without specialist advice and proper consideration of the law and circumstances. A trust provision does not itself provide a guarantee against any of these risks.

23. Drafting and client approval

Carefully review the draft will and its trust provisions, including:

• beneficiaries;
• trustees;
• ages;
• trust purposes;
• life interests;
• discretionary powers;
• gifts;
• residue;
• executors; and
• your other instructions.

Raise questions, errors or uncertainties before approval. Approval does not remove our obligation to exercise reasonable care and skill, transfer responsibility for our drafting errors to you or waive your statutory rights.

24. Signing and execution

We will provide signing and witnessing instructions. Follow them carefully and contact us before signing if anything is unclear or different arrangements may be needed.

Receipt or approval of the document is not a substitute for proper signing and witnessing. An executed testamentary will does not itself create a lifetime transfer into trust.

25. When the trust comes into effect

The testamentary trust normally comes into effect only after your death and as estate administration progresses sufficiently for the relevant assets to be transferred to trustees.

Trustees do not necessarily receive all trust assets on the date of death. The timing and practical operation depend on the will, the estate, administration requirements and applicable law.

26. Estate administration

The standard service does not include:

• applying for probate;
• estate administration;
• transferring assets to trustees after death; or
• trust administration after death.

These tasks may require independent specialist assistance. Preparing the will does not appoint us to perform them or include their costs in the drafting fee.

27. Original will storage

You are responsible for safely storing the signed original will unless separate written storage arrangements have been agreed.

Unless separate written storage arrangements are agreed, you are responsible for storing the signed original will safely. We do not automatically hold its signed original.

We may retain copies and service records in accordance with the Privacy Policy. Retaining a copy is not an agreement to store or monitor the signed original.

28. Cancellation

The General Terms & Conditions and Cancellation Information apply to distance and off-premises contracts, immediate commencement, cancellation during the statutory period, proportionate charges and loss of the statutory cooling-off right after full performance.

Our normal process is to begin the agreed drafting work once instructions and agreed payment have been received and the engagement has been confirmed. Before starting during the applicable cancellation period, we obtain your separate express early-start request and advance full-performance acknowledgement. Neither is pre-ticked.

Starting work alone does not end cancellation rights or make payments automatically non-refundable. If you requested an early start and cancel before full performance, any charge must be lawful, reasonable and proportionate to the services actually supplied compared with the agreed service as a whole. Any refund due is dealt with under the General Terms and applicable law.

For the agreed will with testamentary trust provisions, full performance normally occurs when:

• relevant instructions have been obtained and considered;
• the agreed testamentary trust provisions have been drafted;
• the final will has been prepared and supplied;
• signing and witnessing instructions have been supplied; and
• all other agreed work has been completed.

Supplying a draft alone is not full performance. Signing the final will is not required for completion of our agreed drafting service, but correct execution is necessary for the will and its testamentary provisions to take effect.

Where the required express request and advance acknowledgement have been given and all applicable legal requirements are met, the statutory cooling-off right ends on full performance. You cannot then cancel the completed service under that right merely because you later change your mind.

This does not affect remedies for faulty services, failure to exercise reasonable care and skill, non-conformity with the agreed contract or other applicable statutory rights.

29. Completion

The agreed drafting service is normally complete when the final will containing the agreed testamentary trust provisions has been supplied, execution instructions have been provided, and all other agreed drafting work has been completed.

Future operation and administration of the trust are outside the standard service. Completion does not require your death, the transfer of assets to trustees or the trust's later administration.

Merely labelling work complete does not override the cancellation conditions in section 28 or the General Terms.

30. Relationship with other terms

These Wills with Testamentary Trusts Service Terms must be read together with the General Terms & Conditions and Will Writing Service Terms.

They add provisions specific to testamentary trusts created by will. If there is an inconsistency relating specifically to testamentary trust provisions, these terms take precedence.

The General Terms cover matters including payment, consumer rights, complaints, liability and governing law. Nothing in these terms affects your statutory rights.