HOME PROTECTION TRUST
Ensuring the family home, stays within the family
Why would I do a Home Protection Trust?
When making a Will, most clients wish for their property to pass down to their children and grandchildren. Unfortunately, even with a valid will in place, there are many reasons why this may not happen. For example, if a house is passed to a child and they are subsequently divorced the property could pass to their ex-partner. What if they had financial difficulties or needed care? In fact, there are many reasons why the family home may be lost to a third party.
With a “Home Protection Trust” it is possible to simplify the administration of your estate and protect the family home for up to 125 years. A Home Protection Trust is designed to allow the owner(s) of a property to keep control of, and continue to reside in a property whilst adding a degree of protection against unforeseen future complications.
What are the benefits?
Where a property is transferred into a trust during a client’s lifetime, the costs involve in estate administration following their death are significantly reduced.
AVOID CARE FEES
Where a beneficiary requires either residential or nursing care in later life, the family home (or proceeds of sale) could instead pass to the local authority to cover their care fees. By putting a Home Protection Trust in place this could be avoided.
When you have trustees in place, they can help to manage the property on your behalf. As we grow older, it can be useful to have others take responsibility for, and help manage the property on our behalf.
After inheriting property, if a beneficiary later has financial difficulties or they have to go through bankruptcy, the property may be lost to the beneficiary’s creditors. A Home Protection Trust can help to avoid this.
Where a property forms part of a person’s estate, there is more to deal with. If a property is held on trust, the administration process is quicker and simpler.
Assets held in trust do not have to go through probate. This will save the family the burden and stress of the probate process, at what would already be a very difficult time.
If a beneficiary gets divorced after inheriting property, a share of the property may be lost to their former spouse. Where the property is held in a Home Protection Trust, this can often be avoided.
CLAIMS AGAINST THE ESTATE
We sometimes see clients who do not wish to leave anything to their child/children under their Will. Under legislation, the child/children have a right to contest things and make a claim against the estate. Depending on the circumstances, these claims can often be successful.
Making a claim against assets held in trust is a lot more difficult. This ensures that the property is protected for the people that you want to look after.
Frequently Asked Questions
By having a Property Protection Trust (PPT) you are ensuring that your home, which is your most valuable asset, passes to your chosen beneficiaries regardless of what the future holds. If this is your goal, a PPT could help.
By making a Will, you are ensuring that your family will be taken care of and making the administration process much simpler.
Some people consider giving their property to someone else, such as a child, so that the asset won’t be counted for a care fees assessment. However, this may be viewed as a deliberate deprivation of assets, and you would then have to pay the same level of care fees as if you still owned the property.
Also, if your child’s circumstances were to change during their lifetime, you run the risk of losing the property and becoming homeless. For example, if your child went through bankruptcy, a divorce or they passed away, you may no longer be able to live in the property as the asset would be in their name and could be taken.
As a result, we would never recommend transferring a property into the names of children, or a third party without meticulous planning and advice.
Things are also more time-consuming and complex when a Will is not in place. This can cause additional stress for your family, at what is already a very difficult time.
Under the Wills Act 1837, in order for a Will to be legally binding it must be:
– made by a person who is 18 years of age or older, and who has their mental capacity;
– in writing; signed by the person making the Will and witnessed by two independent people;
– made of the person’s own volition, without pressure or coercion.
A witness cannot be a beneficiary of the Will, nor married to someone who will benefit. We normally advise that clients use close friends or neighbours as witnesses.
The witnesses are there to confirm that the Will was signed by the testator (the person making the Will), and that they knew what they were doing i.e. they were not under any undue influence or pressure to do so.
“Mirrored” Wills are commonly made by unmarried or married couples. Each person has their own document, but the wishes contained within them will be pretty much identical. For example, a “mirrored” Will may say that a couple want to leave everything to each other first, but then when both of them have passed away, the estate should pass to their children.
This is a term used to describe what assets of yours are left after any gifts, debts, tax funeral costs and other testamentary expenses have been paid.
The remainder of your assets are then distributed to your beneficiaries. This could include: your bank accounts, property and personal possessions.
Your residuary estate does not include things such as jointly owned property or bank accounts. It would also not include pensions or life insurance policies that have been written into trust – you would normally have nominated someone to receive these when you set them up.
You have to be at least 18 years of age to receive any inheritance that you may have been left. Sometimes clients feel that 18 years of age is still too young, and will instead opt for 21 or 25. Where a person is under the age of 18 (or whatever age you have specified), their inheritance would be looked after for them by trustees. The trustees would have the discretion to distribute money to them as and when they see fit. Once the child has attained the age of 18 or older, they will then become responsible for their inheritance and make all the decisions for themselves.
An Executor is someone who deals with the administration of your estate. You will appoint these people in your Will, and they are most likely to be close relatives or friends. For more complicated estates, it is not uncommon for someone to appoint a professional to act as their Executor.
An Executor is responsible for the following:
– Finding your Will;
Locating and valuing your assets;
Paying off any debts that there may be at that time;
Distributing the remainder of your assets (your residuary estate) to your beneficiaries.
A trustee is someone who looks after your property until a given time in the future. For example, where money has been left to a child, and they are unable to inherit until they attain a certain age.
Trustees must act with honesty, and integrity. Their responsibilities include: taking control of trust property, to safeguard such property and to act in the best interests of the beneficiaries.
A guardian is someone that you appoint to look after your child/children if something happens to you whilst they are under the age of 18.
If you pass away leaving young children, and you have not appointed a guardian, it will then become the role of the courts to find someone suitable to care for them. This could mean that someone other than who you would like is appointed to look after them.
No, but it is a good way of letting your executors what kind of funeral you would like. We would recommend that you discuss your preferences with your family too.