Property passing outside the estate - Trust property

Learning Outcomes

After reading this article, you will be able to identify when trust property passes outside a deceased’s estate, explain the distinction between legal and equitable ownership, describe the main types of trust relevant to estate planning, and outline the duties and powers of trustees. You will also be able to apply these principles to SQE1-style scenarios and avoid common pitfalls in exam questions.

SQE1 Syllabus

For SQE1, you are required to understand the treatment of trust property in the context of wills and the administration of estates. In your revision, focus on:

  • the distinction between legal and equitable ownership in trusts
  • how trust property passes outside the estate on death
  • the main types of trust relevant to estate planning (e.g. discretionary, interest in possession, bare trusts)
  • the duties and powers of trustees
  • the impact of trusts on inheritance tax and estate administration

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the difference between legal and equitable ownership in a trust?
  2. Which types of trust property do not fall into a deceased’s estate for distribution by personal representatives?
  3. What are the main duties of trustees when holding trust property?
  4. How does a bare trust differ from a discretionary trust in terms of beneficiary rights?

Introduction

When a person dies, not all property they owned or controlled will pass to their personal representatives for distribution under their will or the intestacy rules. Some assets are held on trust and pass outside the estate. For SQE1, you must be able to identify trust property, understand how it is treated on death, and explain the legal consequences for beneficiaries and trustees.

Trust property is a common feature in estate planning and can have significant implications for inheritance tax, asset protection, and succession. This article explains the key legal principles, types of trust, and trustee duties relevant to trust property passing outside the estate.

Trust property: legal and equitable ownership

Trust property is characterised by the separation of legal and equitable (beneficial) ownership. The trustee holds the legal title to the property, while the beneficiary holds the equitable interest.

Key Term: legal ownership The right to deal with and control property in law, held by the trustee in a trust arrangement.

Key Term: equitable (beneficial) ownership The right to benefit from property, held by the beneficiary in a trust.

This division means that, on the death of a trustee, the trust property does not form part of their personal estate. Instead, it continues to be held on trust for the beneficiaries, according to the terms of the trust.

When does trust property pass outside the estate?

Trust property passes outside the estate when the deceased held it as a trustee (i.e. as legal owner only) or as a beneficiary with a limited interest (such as a life interest) that ends on death. In these cases, the property is not available for distribution by the deceased’s personal representatives.

Main scenarios where trust property passes outside the estate

  • The deceased was a trustee: Only the legal title is held; the property remains subject to the trust for the beneficiaries.
  • The deceased had a life interest (interest in possession): The right to income or use ends on death, and the property passes to the next beneficiary (the remainderman) under the trust.
  • The deceased was a beneficiary of a discretionary trust: No fixed entitlement; the trust property remains under the control of the trustees for the benefit of the class of beneficiaries.

Key Term: interest in possession A right to receive income or benefit from trust property for life or a fixed period, but not to the capital.

Key Term: remainderman The person entitled to trust property after the end of a prior interest, such as a life interest.

Types of trust relevant to estate planning

Trusts are used in estate planning to control the timing and manner of asset distribution, protect vulnerable beneficiaries, and manage tax liabilities. The main types encountered in SQE1 are:

Discretionary trusts

In a discretionary trust, trustees decide how and when to distribute income or capital among a class of beneficiaries. No beneficiary has a fixed entitlement.

Key Term: discretionary trust A trust where trustees have discretion over which beneficiaries receive trust property and in what amounts.

Interest in possession trusts

Here, a beneficiary (the life tenant) has a right to income or use of trust property for life, with capital passing to another beneficiary (the remainderman) on their death.

Bare trusts

A bare trust gives the beneficiary an absolute right to both income and capital. The trustee’s role is purely administrative.

Key Term: bare trust A trust where the beneficiary is absolutely entitled to the trust property and can demand its transfer at any time.

Excluded property trusts

These are trusts set up by non-UK domiciled individuals to hold non-UK assets, often for inheritance tax planning. The property is excluded from the UK estate for IHT purposes.

Charitable trusts

Charitable trusts are established for charitable purposes and benefit from special tax treatment, including exemption from inheritance tax.

Trustee duties and powers

Trustees are responsible for managing trust property for the benefit of the beneficiaries. Their main duties include:

  • Acting in accordance with the trust instrument and the law
  • Acting impartially between beneficiaries
  • Exercising reasonable care and skill (Trustee Act 2000)
  • Keeping trust property separate from their own assets
  • Providing information and accounts to beneficiaries

Key Term: trustee The person or persons holding legal title to trust property and responsible for managing it for the beneficiaries.

Key Term: beneficiary The person or persons entitled to benefit from trust property.

Trustees have powers to invest, insure, and sell trust property, subject to the trust instrument and statutory requirements. They may be personally liable for losses caused by breach of trust.

Worked Example 1.1

A is the sole trustee of a trust holding a portfolio of shares for B and C. A dies. Does the share portfolio pass to A’s personal representatives for distribution under A’s will?

Answer: No. The shares are held on trust. Only the legal title was held by A as trustee. On A’s death, the trust property does not form part of A’s estate. The trust continues, and a new trustee must be appointed to hold the shares for B and C.

Worked Example 1.2

D has a life interest in a trust fund, with E as remainderman. D dies. What happens to the trust fund?

Answer: D’s right to income ends on death. The trust fund passes to E (the remainderman) under the trust terms. The fund does not form part of D’s estate for distribution by D’s personal representatives.

Tax and practical implications

Trust property passing outside the estate is not available to pay the deceased’s debts or for distribution under the will or intestacy rules. It may also be excluded from the deceased’s estate for inheritance tax purposes, depending on the type of trust and the deceased’s interest.

However, if the deceased had a fixed entitlement to trust property (e.g. an absolute interest or a vested share), that interest will usually form part of their estate.

Exam Warning

In SQE1 questions, check whether the deceased held property as a trustee, as a life tenant, or as an absolute beneficiary. Only property held as a trustee or as a limited beneficiary (e.g. life interest) passes outside the estate. Absolute interests in trust property usually fall into the estate.

Revision Tip

For exam purposes, focus on the distinction between legal and equitable ownership, and be able to identify when trust property is excluded from the estate for administration and tax.

Key Point Checklist

This article has covered the following key knowledge points:

  • Trust property passes outside the estate when the deceased held only legal title (as trustee) or a limited beneficial interest (e.g. life interest).
  • Legal ownership is held by trustees; equitable ownership is held by beneficiaries.
  • Main types of trust relevant to estate planning are discretionary trusts, interest in possession trusts, bare trusts, and excluded property trusts.
  • Trustees have duties to manage trust property for beneficiaries and may be personally liable for breach of trust.
  • Trust property passing outside the estate is not available for distribution by personal representatives and may be excluded from inheritance tax, depending on the circumstances.

Key Terms and Concepts

  • legal ownership
  • equitable (beneficial) ownership
  • interest in possession
  • remainderman
  • discretionary trust
  • bare trust
  • trustee
  • beneficiary
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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