Property Protective Trusts

Agreement

Property Protective Trusts

property protective trustsIncreasingly more and more elderly people are having to go into Long Term Care and the Local Authorities are looking for ways of possibly recouping the cost of this provision.

The value of your assets, which you have built up over a lifetime, can be eroded by the sale of your house to fund these or indeed a charge put against your home.

If a married couple own a property the Local Authority can use that property to fund care home fees if the following factors apply:

  • That the total value of a person’s assets are more than £ 23,250 which includes the value of their home.
  • The person owns their own home (excluding any mortgage)

In a lot of cases though the home will be occupied by certain relatives of the person who needs care so the property will be disregarded. A persons interest in the home will be disregarded if it is occupied by one of the following:

  • a spouse, partner, former partner or civil partner, except where estranged
  •  a lone parent who is their estranged or divorced partner
  •  a relative or member of your family who is: aged 60 or over, or a child of yours aged under 18, or incapacitated.

If the married couple own the property as beneficial joint tenants ( most common type of joint ownership) and one party dies ownership of the property passes to the surviving partner. This means that the surviving partner now owns 100 % of the property value.  If the surviving partner then goes into care the local authority can use the value of the property to fund the care home fees.

By creating Property Protective Trusts in Wills whilst the married couple are still alive it will ensure that neither party owns the property 100 % outright if one dies.

The type of tenancy that a property is owned under jointly needs to be correct for this to work. There are two types of tenancy for jointly owned property:

Beneficial Joint Tenancy

The ownership of a property as beneficial joint tenants means the property belongs to you and the other owner jointly. You do not own a specific share of the property and you cannot leave your share of the property in a Will. If you die, the fact that you owned the property as beneficial joint tenants means your share passes automatically to the other owner.

Tenancy in Common

Property Protective TrustIf you own a property as tenants in common it means that the property belongs to you jointly and the each person owns an actual share of the property . This share can be given away, sold  or a mortgage raised on the share.

Within your Will you can say what you want to happen to your share on your death. This means your share of the property can be left to chosen beneficiaries within your Will.

If a client wishes to take advantage of a Property Protective Trust the joint ownership would need to be tenancy in common. If it is currently beneficial joint tenancy Mandara Wills can arrange for it to be changed to tenancy in common.

If we then create a Property Protective Trust within the Wills both parties would not leave their share of the property to the survivor instead they would leave their share to a trust to be distributed on the survivors death. They would however give the survivor the right to live in the respective share for the remainder of their life.

The property is now owned 50 % by a trust and 50 % by the surviving partner. On the second death the part owned by the trust would go to chosen beneficiaries. The part owned by the surviving partner would be distributed according to their Will.

The situation should the surviving partner now need to go into care is the two factors at the beginning cannot now be satisfied. In theory the property is protected but it is unfortunately not that definitive.

You might be asking yourself the following question. Can the Local Authority force the surviving partner to sell their 50 % share which would then be used to pay for the care home fees ?

It depends on the Local Authority as some may leave the half share alone recognising the difficulty of selling or assessing the value of 50 % of something. The property cannot be sold without the agreement of the trustees. This outcome cannot be guaranteed and the creation of Property Protective Trusts within Wills should be done on the basis that you are aiming to protect half of the value. If you manage to protect more than this,  then this becomes an added bonus.

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