Family Trust Basics: What Is An Estate Plan?
Estate planning involves considering how assets are to be passed from one generation to the next. The usual components of an estate plan are Wills and Memoranda of Wishes. A Will is a document that deals with an individual’s personal estate upon death. A Memorandum of Wishes is a letter written to Trustees of the Trust to describe how assets are to be dealt with within the Trust.
A common mistake is not to link Wills and the establishment of a Trust. As a accountancy and legal practice we often see individuals who have established Trusts but have not prepared new Wills to reflect this. In this instance, they often have existing Wills prepared many years before that pass assets to spouses or children personally upon death. Once a Trust is established such a Will is flawed for two reasons.
First, you do not want assets to pass to surviving spouses or children personally when they can be directed straight into a Trust free of gifting restrictions. That is, it is important to note that any bequests under a Will are not subject to gift duty.
Second, given that a Trust has been established and the individual is seeking to minimise, their personal estate their Will has become redundant to a certain extent.
Broadly speaking, the objective of an effective Will is to direct assets into the ownership of the Trust on death. This will prevent assets from accruing in the hands of the surviving spouse and family members and also prevent gifting programmes from being extended. Having directed all assets into the Trust, it is then under the Memorandum of Wishes where instruction is provided as to how the assets of the Trust are to be dealt with.
A Memorandum of Wishes is not a legally binding document. It is a letter written to the Trustees of the Trust, describing the settlor’s wishes as to how Trust assets are to be dealt with.
The key to an effective Memorandum of Wishes is to provide the Trustees with instruction to consider the asset protection requirements of any beneficiaries when making distributions from the Trust. For example, if a beneficiary is in a relationship, the Trustees should consider the stability of the relationship and the desirability of passing assets through to the beneficiary individually, where they could be subject to a relationship property claim in the event of a separation.
