The Difference Between Wills and Family Trusts
Wills have traditionally been the preferred estate planning tool. However, recent amendments to Kenyan laws have propelled family trusts into the fore front of estate planning tools by refining it into an excellent asset protection mechanism for families.
While wills and family trusts do share some similarities, there also several differences that set them apart.
Ultimately, both wills and family trusts indicate how your assets will be distributed among your beneficiaries, however, it is important that you carefully examine the two estate planning options and select the one that best meets your family and business needs.
What is a Will?
A written will is document that details the testator’s wishes regarding the distribution of their assets and handling of their affairs after their death. It is a legally enforceable document that should be signed by the testator in the presence of two or more independent witnesses.
The word testator refers to a person who makes a will and who should be an adult of sound mind and above the age of 18 years.
A will usually indicates the people responsible for distributing the property of the deceased (the executors of the will), the donations or bequests made to the beneficiaries, guardianship of minor children, burial wishes of the deceased among other wishes.
Once the testator passes away, the executors of the will are required to petition the court for a grant of probate in order to commence the process of distributing the assets of the deceased among his or her named beneficiaries.
What happens when one dies without a will?
When someone dies without writing a will, the person is said to have died intestate and their assets are usually distributed in accordance with the laws on intestacy provided under the Law of Succession Act Cap 160.
As a result, the person ends up losing control over the management and distribution of their assets upon their death, opening up their estate to misappropriation, wastage and prolonged litigation due to disagreements between family members. In addition, the court will be forced to make critical decisions such as choosing or appointing suitable guardians for minor children, which choice might not necessarily reflect the deceased’s wishes.
What is a Family Trust?
A family trust is an estate planning tool that is created by a settlor (the Founder of the Trust) by transferring his or her assets to a private trust and placing them under the control of a trustee for the benefit of their named beneficiaries.
The settlor can be retained as settlor, beneficiary or trustee of the trust.
Living Trust vs Testamentary Trust
Family Trusts can be formed in two ways:
- By Trust Deed and these are known as Living trusts: –
A living trust is a trust created by the settlor during his or her lifetime. Like a will, living trust spell out a person wishes with regard to their assets, dependents and heirs. However, unlike a will which only becomes effective after death of the testator, a living trust becomes operative during the lifetime of the settlor and continue after the settlor’s passing.
- By Will and these are known as testamentary trusts: –
A testamentary trust is usually indicated in the will and only becomes operational upon the passing of the settlor.
What is the Purpose of Establishing a Family Trust?
A family trust enables you to create a legal mechanism whereby your personal assets or your family assets can be accumulated, multiplied and passed onto the named beneficiaries throughout generations.
It also allows you to outline how you want your affairs to be handled during your lifetime and in the event you are incapacitated due to old age or mental illness, which one cannot do using a will.
What is the nature of a Family Trust?
Once a family trust is registered, it becomes a body corporate with a common seal, having perpetual succession, the power to sue and be sued as well as the capacity to own property in its own corporate name.
Of note is that a family trust is a non-trading entity meaning that if the maker of the trust wants to transfer commercial property to the trust then he or she would have to seek professional advice on how to devise the family trust structure to allow for the same.
Be it as it may, family trusts can be used to hold non trading assets like land or your family home or can be a shareholder in one of your trading companies, in which case it will offer you more protection by disguising the true owners of the business.
Does a will override a Trust?
It is possible for a testator to have both a will and a trust in place for succession purposes for example in the case of a testamentary trust.
A living trust is normally created during the lifetime of the settlor and becomes operative before the will takes effect. In the event there are discrepancies between the two then the living trust will take precedence.
In the case of assets that had not yet been settled into the trust, the provisions of the will will apply.
Main Differences between a Trust and a Will
The following are some of the differences between a will and trust:
|More private – There is no public invitation for proving the same or objections to the trust.||Must be proved through court processes which are public and may open the succession process to interference by 3rd parties.|
|No need to lodge Probate proceedings in court||Grant of probate must be obtained before any distribution.|
|The process of creation is simple and without restrictive formal requirements||Has very specific and formal requirements on drafting and attestation that if contravened may lead to invalidation of the will.|
|Trusts are a legal and safe way to protect assets from creditors and or divorce proceedings.||Creditors are at liberty to join probate proceedings and to have liabilities settled from the estate.|
|Trusts can exist from generation to generation||Wills determine once the all the assets of the deceased have been distributed|
|Living trust take effect during the life time of the settlor.||Wills take effect after the death of the testator|
|Trusts allow for the preservation and growth of family wealth to be enjoyed by several generations||Wills allow for the testator’s assets to be enjoyed by the succeeding generation only.|
Noting the above, there are tangible benefits to be gained by establishing either a family trust or will as your preferred estate planning tool.
If you are only intent on creating an estate plan for the distribution of your assets upon your death, then a will would suffice.
But if you are intent on protecting, accumulating and growing your family assets to be enjoyed by multiple generations then it would be a good idea to consider registering a family trust.
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How can we help?
Suffice to say, it is important to ensure one has a plan on how his or her wealth will be distributed in the event of death. The Wealth and Private Clients team at CM Advocates LLP prides itself in having a wide variety of resources, skills and experience on matters estate planning spanning, trust management and trust administration spanning across the East African Region. It offers an edge to its clients based on its legacy of having structured, re-structured, amended, incorporated several forms of trusts and therefore well capable of guiding you through the process of creating a valid trust. It lawyers are also ready and happy to guide you through the process of planning your estate through wills and power of attorney and meet your unique family needs.
Contact Persons & Contributors
Dianah Gichuru- Partner & Head of Unit
Shalma E. Maina- Associate
This article is for informational purposes only and should not be construed as legal advice.