Can we safeguard our house so that our daughters can inherit it?

admin
14 May 2015

Q

I am in the process of having a new will drawn up. I have asked for a trust to be added to protect our house from being used to pay for long-term care if either of us needs to go into a care home. Does this mean the house cannot be sold to pay for care and that we can leave it to our two daughters?
From
JK/Kent

A

It's good news that you are thinking ahead and drawing up a will; 70% of the country are not as forward-thinking as you. However, you have asked a simple question that, unfortunately, does not have a simple answer.

There are certainly things you can do within your will to protect an inheritance for your daughters and the earlier you start planning, the more effective they will be. A will trust is one of the easiest and least expensive ways of protecting at least half of the value of your house from either sideways disinheritance, such as if your partner remarries, or being used to fund care fees.

Great care must be taken in the timing and creation of such trusts to ensure they are not investigated by the local authority and regarded as a 'deliberate derprivation' of assets. Providing you are currently fit and well and not already planning a move into a care home, you should be able to protect an inheritance for your daughters.

To enable the creation of the trust within a will, the property must be owned by you and your partner as tenants-in-common rather than joint tenants. This can be checked by referring to your title deeds or carrying out a check with the Land Registry. Properties of married couples are usually held as joint tenants but it is a simple process to change the basis of your ownership, your will writer will be able to do this for you for a nominal fee.

The wills of both partners can then be created. The trust must be in both wills and it will come into effect upon the death of the first partner. At this time, the half of the property owned by the deceased is held in the trust (usually on behalf of children), with the survivor having the right to live in the property until their death or their decision to move elsewhere.

If the survivor subsequently requires a move into care, only the half of the property they own can be assessed for care-home fees. Recent case law indicates that the value of half a house is effectively nil and in these circumstances the local authority may not be able to charge any of the cost of care against the value of the house, so your daughters may receive the entire value of the home.

Wills containing a trust require professional advice and drafting particularly with the introduction of the new Care Act from 1 April 2015. Always seek advice from a solicitor or a will writer accredited with the Institute of Professional Willwriters.

Joanne Baker of Hillhampton Wills and Probate Services

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