Making a Will which puts half of your property into a Trust when you die, rather than leaving it directly to your surviving partner.
What if one of you dies and the survivor has to go into care?
In these circumstances, all the family assets including the family home can be used by the Local Authority to pay the residential care fees.
The solution is to make a Will which puts half of the property into a Trust when the first person dies rather than leaving it directly to the surviving partner.
If the first of you to die puts their share of the property into a trust, this will keep it safe for your beneficiaries, as it will never become part of the survivor’s estate. Even if the survivor goes into long term care, the Local Authority will not be able to possess the property to pay for residential care fees. This Will is known as our Care Fee Will.
Surviving partner continues to live in the property
The survivor will continue to live in the property and to own half of it, with the other half being owned by the Trust. Because of this it can never be used to pay residential care fees, and the existence of the Trust gives the survivor’s half some degree of protection too.
The trustees will all normally be family members
The trustees will all normally be family Members so there will be no outside interference or third-party fees payable.
There will be no need for Trust accounts
There will be no need for Trust accounts to be drawn up annually in most cases.
The surviving partner can move
The survivor can move or downsize freely, and the cash generated released for living expenses.
Protecting Your Assets From Nursing Home Costs
Many people are concerned about the implications of the Community Care Act 1990, associated Government Regulations and Guidelines and recent amendments.
They are concerned that should they need to become permanently resident in a residential or nursing home, the local authority may use their property to pay for residential care. Either by seeking for its sale or by placing a charge against the property until it is sold.
The regulations as to exactly what each individual may be expected to contribute are complex. This is not intended to be a guide to that, but rather to explain how by writing your Wills you may take steps to protect at least half of the value of your property or even all of it from this possibility. So, if you are wondering how to protect your assets from residential care fees, read on.
Putting Your House In A Trust To Avoid Care Home Fees
For many people, with saving over £23,250 this is a real concern. The value of any property is included in assessing the savings of any person needing residential care, with the following significant exceptions:
For the first 12 weeks of care;
- If the spouse or partner (or another dependent person, such as a handicapped or minor child) is still resident in the property.
- If neither of the above conditions is met, then should you have no other assets or sufficient income to meet the costs of your residential care, your local authority may agree to a “deferred charge agreement”. This is in effect an interest-free debt secured against your property, which may accumulate over the years. Interest does however become payable should the debt not be paid within 56 days of death.
How To Avoid Selling Your Property To Cover The Costs
For most people, the property is their largest asset that is often at risk of being spent on the cost of residential care. Should they attempt to transfer the property to another person (for example a child) they may either:
- Be caught by the “deliberate deprivation” rules, which means that if the transfer has taken place within 6 months of the donor going into care, the local authority may still treat the asset as the donor’s. This is still the case if there has been more than 6 months before the donor goes into care. Should the local authority still suspect the transfer was made to deliberately avoid paying for their own fees, they may still investigate and take steps to recover their costs.
- Leave themselves vulnerable to circumstances beyond their own control. For example, where the donor’s child divorces or even becomes bankrupt.
- You may need to pay rent to your child for now living in their property, and they would pay income tax on such rent.
For more information, take a look at our guide on How To Avoid Selling Your House To Pay For Care.
The Solution: A Care Fee Will
Where a couple owns a property jointly (with or without a mortgage), they may use their Wills to each gift their share in that property to (usually) their own children. To do so, they must first ensure that their property is owned as tenants-in-common rather than jointly. This gives them each a share in the property to bequeath as they wish.
(Joint ownership normally means that the property will automatically pass to the survivor. This would leave the survivor in the unfortunate position of being the sole owner rather than simply owning a share.)
Therefore, if the property is not already registered as tenants-in-common, a severance is necessary. This makes no difference to the situation while both owners are alive. However, it means that each owner can, in their Will, leave their share as they wish. But, it can also ensure the long term security of their surviving spouse or partner in the family home by giving them the right to remain in the property for life.
This means that should the surviving spouse or partner then need long term residential care, only half the property is owned by that spouse or partner. The half already bequeathed is then protected from the Local Authority.
Advantages Of A Care Fee Will
As long as both spouses/partners are alive, there is no change as nothing is given away at this stage. They are free to sell the property at any time, retaining complete control over it.
Should one spouse/partner need care at this stage, as long as the other spouse/partner remains living in the property, the local authority may not take its value into consideration in assessing the savings of the person needing residential care. The deceased’s share in the property is given to (usually) the children, so does not pass to the survivor.
However, on the death of the first spouse/partner, the survivor retains the right to remain in the property for their lifetime. They also have the right to sell the property and buy another which may also be protected in this way. So, the survivor is not vulnerable to the intended beneficiaries wanting their share immediately.
The survivor will also be one of the Trustees of the trust created, with another person trusted by both parties, giving them some control over their future.
As the gift has been made by the deceased, it is not a gift from the owner needing residential care, so is not covered by the deliberate deprivation rules outlined above.
And, most importantly, should the survivor need long term care, only their own half share in the property may be taken into consideration by the local authority in assessing the value of their savings. This protects at least half the property from this risk.