How to keep your family home in the family – Protective Property Trust
What is a protective trust in a Will? Are property trust Wills a good idea? How does a protective property trust work?
This article outlines how a protective property trust works and whether it can be beneficial to you.
What is a Protective Property Trust?
This type of trust is sometimes called a property protection trust, asset protection trust, family protection trust or a property preservation trust. In essence, it is a trust which offers several benefits.
How do they work?
A Protective Property Trust is a Wills trust, not a lifetime trust.
While you are alive, you and your spouse should transfer the ownership of your home into tenants in common rather than joint tenants. We can help you with this as well.
A trust is set up on your death, so your home goes into the names of your trustees, who hold the property on behalf of the beneficiaries, often your children.
After your death, a requirement will be written into the trust arrangement that the surviving spouse can continue to live in the property for the rest of their life.
After they pass away, assets in the trust will be distributed between your beneficiaries. No grant of probate will be needed.
Mr and Mrs Jones own their house in joint names and have other joint savings.
They both want to ensure that their respective half shares of the house ultimately pass to their children while ensuring the survivor has the protection of living in the property for the remainder of their lifetime.
They also want to ensure that if the survivor of them requires long term care, at least half the property is preserved for the benefit of their children.
If Mr Jones dies first, he leaves his half share of the property into a property protection trust, with the remainder of his estate left to his wife. Mrs Jones has a right to occupy Mr Jones’ half share of the property together with the ability to move house.
If Mrs Jones requires long term care, Mr Jones’ half share of the property is retained in the property protection trust and cannot be assessed as capital available to pay Mrs Jones’ care fees. Even if Mr and Mrs Jones’ children are made bankrupt, become divorced or predecease Mrs Jones, her occupation is secured.
On Mrs Jones’ death, the property protection trust comes to an end and the half share of the house transferred (or the sale proceeds paid) to the children free from any Capital Gains Tax.
Do I need a Protective Property Trust?
Protective Property Trusts are suited to couples and partners where a property or the family home is the main asset in the estate.
These trusts are particularly useful if you are concerned about paying for long-term care fees and you want to ensure your children get at least 50% of the value of your home.
An additional benefit of this trust arrangement is that your spouse can continue to live in and get benefit from the property, even after you pass away.
Are Protective Property Trusts legal?
Protective Property Trusts are legal; however, you cannot have set up the trust to deliberately avoid having to pay for care fees. This is called ‘deprivation of assets’.
If the council looks at the context of setting up the trust, and thinks that it was set up to avoid paying for care, they have wide discretion.
This can include assessing the property for care costs anyway. Therefore, if your spouse already had health issues when the trust was set up, it is likely this will be deliberate deprivation. Hence, it is worth seeking legal advice, otherwise, the efforts of setting up a trust could amount to nothing.
Are Protective Property Trusts a good idea for me?
It is always best to seek legal advice from an experienced specialist on such trusts.
There are no guarantees that your Local Authority would not claim ‘deliberate deprivation’ and challenge the establishment of the Protective Property Trust.
We work alongside a team of experts who will be able to assist you in this area.