Right to Occupation Trust Looking after those important to you

Why would I put a Right of Occupation Trust in my Will?

For the majority of us, the family home is our largest and most valuable asset. Following our death, many of us want the home to pass to particular beneficiaries; most commonly our children.

What would happen if you had someone else living with you? This could be a partner, spouse, relative or friend for example. If you leave the property directly to the beneficiaries, it can leave that person with no where to live. If you leave the property directly to that person, and they meet a new partner or go into care, the beneficiaries may not inherit the property as you wish. Ensuring the person has somewhere to live after your death, could be equally as important as making sure it passes to the children.

A “Right of Occupation Trust” is often the fairest, and most robust option for all involved. It would ensure that someone could live in the property for a certain timeframe, but also protect the asset for the children.

What are the benefits?

Sideways Disinheritance

So often assets are left to a partner or spouse through a simple Will. It is done in the hope that the asset will later pass down to the children. However, this can be problematic; especially if the surviving partner meets a new partner or re-marries. Also, it is not uncommon for the children to lose out because the surviving partner goes into a care home, changes their Will or goes bankrupt. A Right of Occupation Trust is a really effective way to avoid this, and help guarantee your children’s inheritance.

Keep Control

This type of trust structure is commonly used to control assets after death. The trust can provide flexibility, and certainty as to who the property will ultimately pass to in the future.

Flexibility

The trust can be adapted to suit your own personal preferences. For example, you may choose to allow the occupant to live in the property for the rest of their life, or for a specific period of time. You may also wish to impose certain conditions on the occupant i.e. that they pay the bills, and do not substantially change the property without permission. Our job is to tailor the trust you your specific requirements and preferences, this gives you total control over the property after you have passed away.

Guarantee Inheritance

So many factors affect whether or not the family home is passed down to children. For someone who wants to guarantee that their partner or spouse has somewhere to live, but also control who ultimately inherits their home, a Right of Occupation Trust is the best option.

Peace of Mind

Have peace of mind that your partner will not be left homeless after you’ve passed, but know that the asset will ultimately pass to your chosen beneficiaries.

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.

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