Can Conditions Be Put Into Adult Children's Trust Funds?
Q.
My mother has just died leaving the bulk of her estate equally to my wife and me. I want to make a Deed of Amendment whereby £50k is put in trust for each of our children to be used solely for house purchase - with my wife and myself as trustees.
Our solicitor says this cannot be done since all our children are adults (ages 22 and over) and we cannot control what they do with the trust funds. Is this correct?
Would the situation have been the same if my mother had made such a provision in her Will? If so, it seems iniquitous that her wish (and mine) that her bequest be prevented from being frittered away should not be respected regardless of the ages of the beneficiaries
A.
First of all, I am sorry to hear about your mother's death.
In the first instance, I am unsure as to why you would want to accomplish this through a Deed of Amendment. As far as I can tell, the money has already been passed to you. Unless the probate process is ongoing, the money is yours to do with as you please. The only other reason could be that your mother established a trust in her will that makes provision for the money, in which case a Deed of Amendment would be required – but, from your question, this does not appear to be the case.
As such, I see no reason to prevent you from establishing a new trust for each of your children, into each of which you would place £50k. If the money is currently yours you would act as settlor, and could probably also act as trustees although you may also consider appointing professional trustees in order to avoid potential concerns about your fiduciary duty. You could achieve your aims in a number of ways; the most obvious would be to establish a fixed trust, whereby conditions are written into the trust instrument. The problem, however, would be wording the conditions in such a way as to allow your children access to the funds when they required them; fixed trusts usually simply pay out when an individual (normally a minor) reaches a certain age.
Spendthrift trusts are becoming ever more popular in the United States; these are designed to safeguard money in the interests of beneficiaries who are, in the view of the settlor, incapable of managing their own money. The trustees decide when the money will be paid out, although it is implied that this may only be done in the interests of the beneficiary. It is usually also possible to establish such a trust under UK law, although you should seek advice from a solicitor as this is still fairly unusual practice in the UK.
All this being said, your circumstances are still somewhat unclear, for the reasons given above. As such, you should definitely seek a second legal opinion, preferably from an expert in trust law. They will be able to advise you on your specific needs, although I see no immediate reason why your goals cannot be attained.
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