Making a Will is a crucial step in safeguarding your future wishes, but it’s not just about deciding who inherits what. For a Will to be legally valid and enforceable, it must be made correctly – and with a full understanding of the legal requirements involved.

At Franklins Solicitors, we regularly advise clients who are unaware of the potential pitfalls when it comes to writing and signing a Will. Issues around capacity, execution and DIY or online solutions can lead to serious complications – or even render a Will invalid.

For a Will to be valid, the person making it (the testator) must have the mental capacity to do so. This is known as “testamentary capacity” and is a legal requirement under UK law.

The testator must:

As we are all living longer, cases involving capacity are becoming more common. Conditions such as dementia or mental health disorders don’t necessarily prevent someone from making a Will, but they do require extra care and often medical evidence to confirm capacity at the time of signing.

If there is any doubt, it is essential to seek professional legal advice early to avoid disputes later.

While it is legally possible to write your own Will by hand, we strongly advise against it. Homemade Wills, including handwritten or downloaded templates, are more prone to errors in language, format, and execution.

These documents are often:

During their lifetime, people usually do not pay CGT when selling their main home because of Principal Private Residence Relief (PPRR).

For Executors, the rules are different. PPRR is only available if:

A Will may seem straightforward on the surface, but the law surrounding estates, tax, and inheritance is anything but. One missing clause or a poorly chosen word can lead to disputes, delays, or your wishes not being carried out at all.

Online Will-writing services are widely advertised, but they often offer a one-size-fits-all approach that lacks the rigour and personalisation of professional advice. They typically do not account for complex family situations, blended families, business ownership, overseas assets, or vulnerable beneficiaries.

Even for seemingly simple estates, we regularly see clients needing to “fix” or challenge Wills made using online platforms – often at much greater cost than having done it properly in the first place.

One of the most common reasons a Will becomes invalid is incorrect witnessing. For a Will to be legally binding, it must be:

Crucially, witnesses cannot be beneficiaries of the Will, nor can they be married to or in a civil partnership with a beneficiary. If a beneficiary acts as a witness, they will lose their inheritance under the Will, though the rest of the document may remain valid.

Example: If you name your daughter as a beneficiary and she witnesses your Will, she will not receive her inheritance. Even if your son-in-law witnesses the Will, your daughter will lose her entitlement because the witness is married to a beneficiary.

A Will should reflect your current circumstances. Major life events can significantly affect how your estate should be distributed, yet many people forget to review their Will after these changes occur.

Marriage automatically revokes any existing Will unless it was made in contemplation of that specific marriage. This means if you marry after making your Will, you will effectively die intestate unless you make a new Will.

Divorce does not revoke a Will, but it does remove an ex-spouse as a beneficiary or executor – though other provisions remain in place.

We recommend reviewing your Will every five years, or after:

If you have children under 18, your Will should name guardians who will care for them if both parents die. Without this provision, the courts will decide who looks after your children – and their decision may not align with your wishes.

This is one of the most important reasons for parents to make a Will, yet it is frequently overlooked in DIY and online Wills, which often fail to prompt for this information.

A valid Will is not just a piece of paper – it’s a legally binding document and arguably one of the most important you will make. Getting it wrong can have life-changing consequences for those you leave behind.

At Franklins, we work closely with our clients to ensure that every Will is:

Whether you’re writing your first Will or updating an existing one, our experienced Private Client team is here to support you every step of the way.

If you are concerned about an existing Will or would like to make a new one, contact our Wills and Probate team for clear, practical advice.

When someone passes away, their Executors often need to deal with selling assets such as property, shares, or investments. One area that commonly causes confusion is Capital Gains Tax (CGT). The rules are similar to those that apply to individuals selling assets in their lifetime, but there are some important differences that can easily catch Executors out.

A common misconception is that CGT is based on what the deceased originally paid for an asset, which can be worrying if it was bought decades ago and has gone up a lot in value.

The good news is that there is a “free uplift” on death. This means that the starting point for CGT is the asset’s value at the date of death – not what was originally paid. Executors only pay CGT on any increase in value from the date of death to the date of sale.

Example: If the deceased bought a property for £100,000 in 1990, and it was worth £400,000 at the date of death, the estate’s base cost is £400,000. If Executors later sell it for £420,000, CGT is only payable on the £20,000 gain.

CGT only arises when the Estate actually sells an asset for more than its value at death. Importantly, there is no CGT liability when assets are transferred directly to beneficiaries – this is not treated as a disposal for CGT purposes.

This means Executors should consider whether it is better to sell assets themselves or to transfer them to beneficiaries, who can then use their own CGT allowances if they choose to sell later.

During their lifetime, people usually do not pay CGT when selling their main home because of Principal Private Residence Relief (PPRR).

For Executors, the rules are different. PPRR is only available if:

In practice, this usually only applies where the deceased owned the property with someone else who still lives there.

If PPRR does not apply and CGT is due on the sale of UK residential property, Executors must report the gain and pay any CGT due within 60 days of completion.

This is a strict deadline and applies even if the Estate’s overall tax return is not yet due. Failure to report and pay within 60 days can result in penalties and interest charges.

The 60-day rule does not apply to other assets such as shares or commercial property, which are reported on the Estate’s annual tax return.

Just like when selling in your lifetime, the Estate can deduct certain costs from the sale price before working out the taxable gain. These include:

If solicitors are handling the Estate administration, part of their fees can also be deducted.

Estates have the same annual CGT exemption as individuals – currently £3,000 for the 2024/25 tax year (much lower than in recent years).

Executors can only use this exemption in:

After that, the exemption is lost if assets are still unsold.

This means timing can be important. If possible, Executors should consider whether delaying a sale into a new tax year allows them to use another year’s allowance.

A useful tax planning tool is ‘appropriation’, where an asset is allocated to beneficiaries before it is sold.

This means the sale is treated as if it was made by the beneficiaries, not the Estate. Each beneficiary can then use their own CGT allowance in addition to the Estate’s allowance.

For example, if there are three beneficiaries, the gain can be spread across the allowances. This can significantly reduce the overall tax bill.

Appropriation must be done correctly and documented properly, so Executors should take advice before using this strategy.

CGT in Estate administration can be tricky, with rules that differ from those for individuals. Executors should always take professional advice before selling assets, especially where values have risen significantly since the date of death. This ensures that the Estate is managed properly and avoids unexpected tax bills.

If you are acting as an Executor and need guidance on CGT or any other aspect of estate administration, contact our Wills and Probate team for clear, practical advice.

We plan for many things in life: careers, retirement, even our Wills. Yet fewer people prepare for the possibility of losing the ability to make decisions for themselves. With longer life expectancies and rising rates of dementia and other capacity-limiting conditions, planning for mental incapacity is more important than ever.

At Franklins Solicitors, we help individuals and families plan ahead with confidence and compassion. One of the most effective legal safeguards available is a Lasting Power of Attorney (LPA), a document that allows someone you trust to act on your behalf if you lose capacity.

LPAs are not just for the elderly. Anyone can suffer an unexpected accident or illness. Without an LPA in place, your loved ones will not have the automatic right to make financial or healthcare decisions for you – not even your spouse or children.

Instead, they may be forced to apply for deputyship through the Court of Protection, a lengthy, costly and emotionally demanding process. Creating an LPA in advance avoids this scenario and ensures that your wishes are respected by appointing the right people in the right way.

There are two types of Lasting Power of Attorney, each serving a different purpose:

Property and Financial Affairs LPA lets your attorney manage bank accounts, pay bills, collect pensions or even sell your home. This can be used as soon as it is registered, even if you still have capacity, making it useful if you need assistance while abroad or during periods of ill health.

Health and Welfare LPA allows decisions about your care, treatment and where you live, but only if you are unable to decide for yourself. This covers daily routines, medical treatment, moving into a care home and, in some cases, life-sustaining treatment.
Both types can be tailored to your preferences and registered in advance for peace of mind.

When appointing attorneys, many people choose to name more than one person, often family members such as siblings or children. They can be appointed to act jointly (all decisions made together) or jointly and severally (independently or together).

This choice has serious practical implications:

If you are acting as an attorney and encountering problems, or you are unsure whether to appoint attorneys jointly or jointly and severally, professional advice can help you avoid future complications.

Creating an LPA requires several steps:

Registration typically takes 8-10 weeks, though delays can occur. The registration fee is currently £92 per LPA, though exemptions and reductions are available for those on certain benefits.

While it is possible to create an LPA yourself, errors are common and can lead to delays or rejection. At Franklins, we help clients get it right first time, ensuring the document is legally valid, reflects your wishes and works in real-world situations.

If you made an Enduring Power of Attorney (EPA) before 1 October 2007, it may still be valid — but it only covers financial decisions, not health or welfare. We can review your existing EPA to check if it remains appropriate or if a new LPA would offer better protection.

If no LPA is in place and you lose mental capacity, a loved one must apply for deputyship to manage your affairs. This route involves:

Creating an LPA is faster, cheaper and gives you more control over who will act for you and how.

An Advance Decision (sometimes called a Living Will) is a separate document that allows you to specify which medical treatments you do or do not want to receive if you lose capacity to make those decisions yourself.

Unlike a Health and Welfare LPA, which appoints someone else to make healthcare decisions for you, an Advance Decision sets out your own preferences directly. It is legally binding if it meets the requirements of the Mental Capacity Act 2005.

Common decisions include preferences about resuscitation, life-sustaining treatment or specific medical interventions. An Advance Decision works alongside, not instead of, an LPA.

Putting a Lasting Power of Attorney in place is not just a legal task — it is an act of care for your future self and the people around you. It gives your loved ones the tools they need to help you if the time comes.

Whether you are preparing your own LPA or acting as an attorney for someone else, Franklins’ Wills, Trusts and Probate team is here to guide you. From start to finish, we ensure the process is handled correctly, compassionately and with your best interests at heart.

Contact our Wills and Probate team today to discuss Lasting Powers of Attorney and incapacity planning.

Planning how to provide for your children after you are gone can be an emotional and sometimes difficult process. Naturally, most parents want to treat their children fairly. But if a child is vulnerable or has additional learning needs, leaving them an inheritance outright may not always be the best option.

For example, a direct inheritance could:

In these situations, placing money into a Trust is often the most appropriate solution.

A Trust is a legal arrangement where assets such as property, money or shares are held and managed by one or more people (the Trustees) for the benefit of another (the beneficiary).

The Trustees have a legal duty to manage the Trust assets responsibly and in the best interests of the beneficiary. Importantly, because the beneficiary does not legally own the assets, the Trust can protect them from financial risks while still allowing them to benefit from the inheritance.

There are two main types of Trusts commonly used to protect vulnerable children or those with additional needs.

A Discretionary Trust is the most flexible option.

Because the beneficiary has no legal entitlement to Trust funds, their means-tested benefits such as Universal Credit, Personal Independence Payment or housing support remain unaffected.

To guide the Trustees, the person making the Will (the testator) should write a Letter of Wishes. While not legally binding, this document sets out your hopes and intentions, giving Trustees valuable direction when managing the Trust.

A Disabled Person’s Trust is designed specifically for someone who meets the statutory definition of disability under the Mental Health Act 1983 or who receives certain qualifying benefits such as Disability Living Allowance or Personal Independence Payment.

However, if your estate is substantial, the restrictions may mean that surplus funds cannot easily be distributed to others.

Trusts can be created during your lifetime or through your Will.

A Trust created in your Will only takes effect after your death. The Will itself acts as the Trust document, so there is no need for a separate Trust deed. Once your estate has been administered and any Inheritance Tax or debts settled, the Trustees can begin managing the Trust assets for the beneficiary.

Alternatively, you can create a Trust during your lifetime, which may be appropriate if you want to make provision now or if your circumstances require immediate planning.

Appointing the right Trustees is crucial. They will have wide-ranging powers and responsibilities, including the day-to-day administration of the Trust.

When deciding who to appoint, consider people who:

Many families appoint a combination of family members and professional Trustees, such as solicitors, to ensure both personal understanding and professional expertise.

Professional advice is strongly recommended before making your decision.

A Letter of Wishes sits alongside your Will or Trust and provides practical guidance for your Trustees.

A Letter of Wishes can be updated at any time without changing your Will, making it a flexible tool for providing ongoing guidance.

One of the key advantages of using a Trust for a vulnerable child is that it protects their entitlement to means-tested benefits.

If assets are held in Trust, they are not counted as belonging to the beneficiary for benefit assessment purposes. This means they can continue to receive vital support such as:

Without a Trust, a direct inheritance could disqualify them from these benefits or reduce the amount they receive, potentially leaving them worse off overall.

Every family situation is unique, and the most appropriate type of Trust will depend on your specific circumstances. Professional advice ensures that the right decisions are made for both you and your loved ones.

Considerations include:

If you would like tailored advice on Estate Planning and creating a Trust to protect a vulnerable child, our experienced Wills and Probate team is here to help.

While wills are essential for outlining your wishes after death, many individuals choose to take their estate planning further by using trusts as a powerful tool for control, protection and long-term planning. Trusts can offer valuable benefits both during your lifetime and beyond, particularly when it comes to managing wealth, minimising tax and providing for others with precision.

At Franklins Solicitors, we regularly advise clients on how to incorporate trusts into their wider estate strategy. When used correctly, they offer flexibility, clarity and peace of mind. But without proper legal guidance, they can also lead to unexpected risks.

A Trust is a legal arrangement where one or more people (the trustees) hold and manage assets on behalf of others (the beneficiaries). The person who creates the Trust is known as the settlor. Trusts can be used to pass on wealth, protect vulnerable individuals, manage property ownership or structure family business succession.

Contrary to common belief, trusts are not just for high-net-worth individuals. They are widely used in a range of everyday situations, including:

The key is to choose the right type of Trust and ensure it is properly established and maintained.

Trusts can address specific concerns that a basic will cannot. Common situations where trusts prove valuable include:

A life interest Trust allows your spouse to benefit from assets during their lifetime (for example, living in the family home or receiving investment income) while ensuring the capital ultimately passes to your children from a previous relationship.

Rather than inheriting a large sum at 18, funds can be held in Trust and released at specific ages or milestones, such as completing education or buying a first home.

Trusts can support relatives with disabilities or mental health conditions without affecting their entitlement to means-tested benefits.

Trusts can facilitate orderly handover of family businesses, protecting continuity and commercial value across generations.

Certain Trust structures can help protect part of your estate from local authority assessment, though this must be approached carefully to avoid deprivation of assets challenges.

There are several types of trust commonly used in estate planning, each suited to different circumstances:

The simplest form, where the beneficiary has an absolute right to both the capital and income. Often used for straightforward gifts to children or grandchildren.

Also known as an interest in possession trust. The beneficiary receives income or use of an asset (such as living in a property) during their lifetime, with the capital passing to others after their death.

The most flexible option. Trustees have discretion over how and when to distribute income and capital among a class of beneficiaries. This allows them to respond to changing circumstances and individual needs.

A trust created within your will that only takes effect after your death. This avoids the need for a separate trust deed during your lifetime.

Each type has different tax implications and suitability depending on your circumstances.

A declaration of trust is a specific type of legal document used to record how property is owned when two or more people have unequal financial interests. This is particularly common where one person has contributed more to a property deposit or mortgage, or where parents have helped a child buy their first home.

Without a declaration of trust, assumptions can lead to costly disputes later, especially if a relationship breaks down or if one co-owner dies. Having this documentation in place helps to clarify contributions and entitlements from the outset, offering protection and transparency for all parties involved.

In recent years, some individuals have been encouraged to gift their property into a trust as a way of avoiding care home fees or inheritance tax. While this strategy might sound appealing, it can be highly risky and, in many cases, ineffective.

If not done correctly, such transfers may be challenged by local authorities under deprivation of assets rules. They could also create unexpected tax liabilities or even result in the loss of legal control over your home.

At Franklins, we strongly recommend seeking advice before making any decisions about gifting assets. A full understanding of the legal and financial consequences is essential before proceeding.

Appointing trustees is one of the most important decisions when setting up a trust. Trustees have wide-ranging legal responsibilities, including:

When choosing trustees, consider people who:

Many families appoint a combination of trusted family members and professional trustees (such as solicitors) to balance personal knowledge with professional expertise and continuity.

Since the introduction of the Trust Registration Service (TRS), many Trusts, including some that were previously exempt, are now required to be registered with HMRC. This includes certain bare trusts and co-ownership arrangements that many people do not realise qualify.

Failure to register a Trust can result in penalties and complications, especially when administering an estate or selling a property. Our team provides clear guidance on whether your Trust needs to be registered, and we can manage the registration process for you.

The TRS is part of HMRC’s efforts to improve transparency and prevent money laundering. Even if you created a Trust years ago, you may now have registration obligations.

Creating a trust is not a one-off event. Trusts require ongoing administration, which can include:

Professional trustees typically handle these responsibilities as part of their service. For family trustees, understanding these obligations before agreeing to act is essential.

Trusts have complex tax implications that vary depending on the type of trust and when it was created. Key tax issues include:

Assets placed in most trusts during your lifetime are treated as chargeable lifetime transfers and may trigger an immediate tax charge if they exceed the nil-rate band (currently £325,000). If you survive seven years after creating the trust, the assets generally fall outside your estate for inheritance tax purposes.

Income generated within a trust is typically taxed at higher rates than income received by individuals. The specific rates depend on the trust type.

Trusts have their own capital gains tax allowance, currently half the personal allowance available to individuals.

Professional advice is essential to understand how these taxes apply to your specific situation and to structure trusts in the most tax-efficient manner.

Trusts can be a valuable part of your estate plan, but they must be approached with care. With the right advice, they offer flexibility, protection and a way to meet your family’s needs long into the future. Without proper legal input, however, they can be misunderstood, misapplied and potentially challenged.

At Franklins, we work closely with individuals, families and business owners to create bespoke trust and estate planning solutions that align with your goals. Whether you need to create a trust, register an existing one or understand your options, we are here to help you plan with clarity and confidence. 

To discuss trust planning or any aspect of your estate, contact us to arrange a consultation with our private client team.

Despite its importance, writing a Will is something many people put off. It is not always easy to think about the future in this way, but making a Will is one of the most responsible steps you can take to protect your loved ones and ensure your wishes are respected.

At Franklins Solicitors, we understand the impact a well-drafted Will can have, and more importantly, the problems that can arise when one is not in place.

When someone dies without a valid Will, their estate is distributed under the rules of intestacy. These rules are rigid, impersonal and often do not reflect modern family arrangements. For example, unmarried partners and stepchildren have no automatic right to inherit under intestacy, regardless of the nature or length of the relationship.

This can lead to distress, disputes and delays for those left behind, particularly if there are family members who believed they would inherit, or if there are disagreements over funeral wishes and financial arrangements.

In England and Wales, if you die without a Will and your estate is worth more than £322,000, your spouse or civil partner will inherit the first £322,000, plus half of the remaining estate. The other half is divided between your children. If your estate is worth less than £322,000, your spouse inherits everything and your children receive nothing.

Unmarried partners receive nothing under intestacy, regardless of how long the relationship lasted. This means your partner could face significant financial hardship or even lose the family home.

Without a Will:

A Will allows you to decide exactly who benefits from your estate and what they receive. You can leave specific items to particular people, make cash gifts, or divide your estate in percentages.

If you are not married or in a civil partnership, your partner has no automatic right to inherit anything from your estate, even if you have been together for decades or have children together. Only a Will can protect them.

If you have children under 18, a Will lets you choose who will look after them if both parents die. Without a Will, the court will decide, and this may not be the person you would have chosen.

Proper planning through your Will can help reduce the amount of Inheritance Tax your estate pays. This might include making use of tax reliefs, setting up trusts, or leaving gifts to charity.

You can use your Will to ensure your partner or children can continue living in the family home. This might involve leaving them the property outright, giving them a life interest, or setting up a trust.

If you have a child or relative with a disability or who cannot manage money, you can set up a trust in your Will to provide for them without affecting their entitlement to means-tested benefits.

A Will allows you to leave gifts to charities or causes that matter to you. Gifts to charity can also reduce the Inheritance Tax payable on your estate.

Executors are responsible for administering your estate, paying debts and distributing assets. Your Will allows you to choose people you trust to carry out these important duties.

A clear, professionally drafted Will reduces the risk of arguments between family members. It sets out your wishes in legally binding terms, leaving little room for misunderstanding or challenge.

While not legally binding, your Will is an appropriate place to record preferences about your funeral arrangements, whether you wish to be buried or cremated, and any specific requests.

You should review your Will every three to five years, or whenever your circumstances change significantly. Key life events that should prompt a review include:

Making a Will involves several important steps:

Calculate your total assets, including property, savings, investments, pensions and personal possessions. Deduct any debts such as mortgages, loans and credit cards to understand your net estate.

Consider who you want to inherit and what you want them to receive. Think about contingency plans if a beneficiary dies before you.

Select trustworthy people who are capable of handling the responsibilities. Many people choose two Executors to share the workload. You can appoint professional Executors such as solicitors for complex estates.

Think about whether your estate will be liable for Inheritance Tax and whether there are steps you can take to reduce this through your Will.

Have your Will professionally drafted to ensure it is legally valid and clearly expresses your wishes. Errors in wording or structure can invalidate a Will or create ambiguity.

In England and Wales, your Will must be signed by you in the presence of two independent witnesses, who must also sign in your presence. Witnesses cannot be beneficiaries or married to beneficiaries.

Keep your Will in a secure location and ensure your Executors know where to find it. Many people store Wills with their solicitor or with the Probate Service for safekeeping.

In an age of online templates and DIY Will kits, it is tempting to take a shortcut. But a poorly drafted Will can cause more harm than good. Errors in wording, execution or even witnessing can render it invalid or open the door to costly and emotionally charged disputes.

Common problems with DIY Wills include:

Our experienced Wills and Probate team can help you avoid these risks. We ensure your Will is legally sound, clearly expressed and tailored to your personal circumstances, including any tax planning considerations, business succession issues or vulnerable beneficiaries.

The cost of making a Will varies depending on the complexity of your estate and your personal circumstances. For a straightforward Will, you might expect to pay between £150 and £300 per person. More complex Wills involving trusts, business assets or tax planning may cost £500 or more.

While this might seem expensive compared to a DIY Will kit, the cost of getting it wrong can be far greater. An invalid or poorly drafted Will can result in expensive legal disputes, unintended tax liabilities or your estate being distributed in ways you never intended.

Making a Will is one of the simplest and most important things you can do to protect your family’s future. At Franklins, we make the process straightforward, respectful and secure.

Whether you are making a Will for the first time or updating an existing one, we provide clear, practical advice every step of the way.

To arrange a consultation with our private client team at our Northampton or Milton Keynes office, contact us today.

Planning how to provide for your children after you are gone can be an emotional and sometimes difficult process. Naturally, most parents want to treat their children fairly. But if a child is vulnerable or has additional learning needs, leaving them an inheritance outright may not always be the best option.

For example, a direct inheritance could:

• Affect their entitlement to means-tested benefits or support services
• Put them at risk of financial exploitation
• Be difficult to manage if they are unable to handle money independently

In these situations, placing money into a Trust is often the most appropriate solution.

Types of Trusts

There are two main types of Trusts commonly used to protect vulnerable children or those with additional needs.

1. Discretionary Trust

A Discretionary Trust is the most flexible option.

• Your child can be included as a potential beneficiary alongside others, such as siblings, family members, or even charities.
• Being named as a beneficiary does not give them automatic entitlement to the Trust funds. Instead, the Trustees decide how and when money should be used to support them.
• This allows the Trustees to make decisions in your child’s best interests, ensuring they are provided for in a way that meets their individual needs.

To guide the Trustees, the person making the Will (the testator) should write a Letter of Wishes. While not legally binding, this document sets out your hopes and intentions, giving Trustees valuable direction when managing the Trust.

2. Disabled Person’s Trust

A Disabled Person’s Trust is designed specifically for someone who meets the statutory definition of disability under the Mental Health Act 1983.

• It is less flexible than a Discretionary Trust. While you can name other beneficiaries, the Trustees’ ability to provide for them is restricted to the lower of £3,000 per year or 3% of the Trust’s assets.
• This can be helpful in ensuring the majority of the funds remain for the benefit of the vulnerable child.
• However, if your estate is substantial, the restrictions may mean that surplus funds cannot easily be distributed to others.

Choosing Your Trustees

Appointing the right Trustees is crucial. They will have wide-ranging powers and responsibilities, including the day-to-day administration of the Trust.

When deciding who to appoint, consider people who:

• Understand the needs of the beneficiaries
• Can work well together
• Are capable of managing the financial and legal responsibilities involved

Professional advice is strongly recommended before making your decision.

Letters of Wishes

A Letter of Wishes sits alongside your Will or Trust and provides practical guidance for your Trustees.

• It does not need to be in formal legal language
• It is not legally binding but it helps Trustees understand your intentions and preferences
• It can give you peace of mind that your wishes will be taken into account

Why Professional Advice Matters

Every family situation is unique and the most appropriate type of Trust will depend on your specific circumstances. Professional advice ensures that the right decisions are made for both you and your loved ones.

If you would like tailored advice on Estate Planning and creating a Trust, please contact our experienced Private Client team:

Alarmingly, 2 million older adults currently have unmet care or support needs – ranging from difficulty bathing to walking across a room. Additionally, access to long-term publicly funded social care has fallen from 8.2% of older adults in 2003/04 to 3.6% in 2023/24, suggesting the system is struggling to keep pace.

It’s no wonder then that one of the most common questions we hear from clients is:

“How can I protect my home from having to be sold to pay for care home fees?”

For many families, the home is their main asset. The thought of it being sold to fund care costs can be worrying. While there are no guaranteed ways to completely avoid care home fees, there are legal options worth considering – some more effective and safer than others.

When someone enters residential care, the local authority carries out a financial assessment (means test) to determine how much they must contribute towards care costs.

In England, the current thresholds are:

Your home is usually included in this assessment, unless:

With average care home costs ranging from £800 to £1,400 per week for residential care, and even more for nursing care, assets can be depleted quickly without proper planning.

A common misconception is that gifting your home to children or other beneficiaries during your lifetime will stop it from being included in care fee assessments. While this may sound appealing, in practice it carries significant risks:

Once gifted, the property no longer belongs to you, meaning you cannot control what happens to it. You have no legal right to live there and could technically be asked to leave.

If your beneficiary divorces, becomes bankrupt, or passes away, your home could form part of their financial settlement or estate. You could lose the home entirely through circumstances beyond your control.

Local authorities can treat the gift as “deliberate deprivation of assets” if they believe it was done to avoid care fees. If this happens, they will treat you as if you still own the property when assessing your care costs.

There is no time limit on how far back local authorities can look. They will consider:

If the local authority determines deliberate deprivation has occurred, they can still require you to pay care fees based on the value of the gifted asset, even though you no longer own it.

For inheritance tax purposes, if you gift your property but continue to live in it, HMRC may treat this as a “gift with reservation of benefit”. This means the property remains part of your estate for inheritance tax, even after seven years.

Because of these substantial risks, gifting is rarely the safest solution.

For couples, how you own your home makes a significant difference to care fee protection. There are two ways to own property jointly:

This is the most common form of ownership. When one owner dies, the property automatically passes to the surviving owner. It does not form part of your Will.

The problem: If the surviving owner later needs care, the full value of the property is assessed for care fees.

Each owner holds a distinct share (usually 50% each). When one owner dies, their share passes according to their Will, not automatically to the other owner.

The benefit: The deceased’s share can be placed into a trust, protecting that portion from care fee assessments if the surviving owner later needs care.

If you currently own your property as joint tenants, it can be changed to tenants in common through a legal process called “severance of joint tenancy”. This is an essential first step in care fee planning for couples.

A carefully drafted Will can provide that, on the first death of a couple, a share of the property passes into a trust. The surviving spouse or partner can still have the right to live in the home, while the capital value is preserved for your chosen beneficiaries.

How it works:

Example:

Mr and Mrs Smith own a £200,000 home as tenants in common. When Mr Smith dies, his £100,000 share goes into a life interest trust for their children. Mrs Smith continues living in the property.

Five years later, Mrs Smith needs residential care costing £50,000 per year. Only her £100,000 share is assessed for care fees. After two years, when her assessable assets fall below £23,250, she becomes eligible for local authority support.

When Mrs Smith dies, the children inherit the £100,000 from the trust plus what remains of Mrs Smith’s share – significantly more than if no trust had been in place.

This type of Will trust can be structured to allow flexibility – for example, enabling the survivor to downsize or move to a new property – while ensuring that the deceased’s share of the estate is protected for future generations.

Another option is to place your property into a trust during your lifetime. This can provide some protection from care fees while allowing you to retain the right to live in your home.

However, lifetime trusts are more complex and expensive to set up, with costs typically running into thousands of pounds. There may also be tax consequences, as discretionary trusts face higher tax rates than personal assets.

Important considerations:

For many families, using trusts within Wills can offer a more balanced and cost-effective solution.

Some local authorities offer deferred payment agreements. This allows you to defer paying care home fees until your property is sold, usually after your death. Interest is charged, but it means you don’t have to sell your home immediately.

If your primary need is for healthcare rather than social care, you may qualify for NHS Continuing Healthcare funding. This pays for all care costs regardless of your assets. However, eligibility criteria are strict and applications are often refused initially.

Every family’s situation is different, and the right approach will depend on your circumstances. The key points to remember are:

Seeking advice from an experienced solicitor is the best way to ensure your home and assets are protected in a way that works for you and your loved ones. We can guide you through the options available and help you put the right protections in place.

If you’re concerned about protecting your home from care fees, contact our Wills and Probate team for clear, practical advice tailored to your circumstances.

When someone passes away, their estate is usually distributed in accordance with their Will or, if there is no Will, under the rules of intestacy. But what happens if the beneficiaries would prefer to rearrange how the estate is divided? This is where a Deed of Variation can be a very useful legal tool.

A Deed of Variation is a legal document that allows beneficiaries of an estate to change how the estate is distributed after someone has died.

In simple terms, it gives beneficiaries the option to “redirect” all or part of their inheritance to another person or cause, even though the Will or intestacy rules say otherwise.

Importantly, the deed must be made within two years of the date of death, and any changes must be agreed upon and signed by all the beneficiaries affected by the variation.

There are several situations where a Deed of Variation might be appropriate:

If a variation directs part of an estate to someone else – for example, directly to a charity – this can reduce the amount of Inheritance Tax payable. For tax purposes, the law treats the estate as if the deceased had made the gift themselves. This is known as “reading back” the variation to the date of death.

Example: If you redirect £50,000 of your inheritance to a charity, the gift is treated as if the deceased made it directly. This can reduce the IHT rate on the estate from 40% to 36% if 10% or more of the estate goes to charity.

Sometimes a Will or the intestacy rules do not provide for a person who the family feels should benefit – perhaps a stepchild, cohabiting partner, or another relative. A Deed of Variation can redirect part of the estate to them.

In some cases, a variation can help reorganise assets in a more practical way. For example, if one beneficiary is inheriting a property they don’t want to maintain, they might prefer to redirect it to another family member who does.

Parents who inherit from their own parents may decide to redirect their share directly to their children. This can be a way of providing financial support to the next generation while reducing the tax burden.

If you inherit money but then gift it to your children, this will use your gifting allowance and could create an IHT liability if you do not survive the gift by seven years. If a Deed of Variation is used instead, the law treats the gift as if the deceased made it, so it does not impact on your own tax position.

For a Deed of Variation to be valid and effective for tax purposes, it must meet certain requirements:

The deed does not change the Will itself – it changes how the inheritance is distributed. Each beneficiary can only vary their own share of the estate, though all affected beneficiaries can work together if the variation impacts their entitlements.

It’s important to understand the limitations:

A Deed of Variation can only be made once concerning the same assets. If it is wrong, there is no going back to correct it. This is why professional legal advice is strongly recommended.

If all beneficiaries agree and no complications arise, preparing a Deed of Variation typically takes two to four weeks. However, the process can take longer if:

Remember, the variation must be completed within two years of death to qualify for favourable tax treatment.

At Franklins Solicitors, our Wills, Trusts and Probate team regularly advise on Deeds of Variation and can guide you through the process. Whether your priority is tax planning, fairness for family members, or simplifying the estate, we can ensure the variation is carried out correctly and in line with your wishes.

If you would like to discuss a Deed of Variation or have questions about estate planning, contact our team for clear, practical advice.

When someone passes away, their Executors often need to deal with selling assets such as property, shares, or investments. One area that commonly causes confusion is Capital Gains Tax (CGT). The rules are similar to those that apply to individuals selling assets in their lifetime but there are some important differences that can easily catch Executors out.

Step-up in value on death

A common misconception is that CGT is based on what the deceased originally paid for an asset, which can be worrying if it was bought decades ago and has gone up a lot in value.

The good news is that there is a “free uplift” on death. This means that the starting point for CGT is the asset’s value at the date of death – not what was originally paid. Executors only pay CGT on any increase in value from the date of death to the date of sale.

Selling the family home

During their lifetime, people usually don’t pay CGT when selling their main home because of Principal Private Residence Relief (PPRR).

For Executors, the rules are different. PPRR is only available if:

• The property was the main residence of at least one person immediately before and after the death;
• That person is entitled to at least 75% of the sale proceeds; and
• The personal representatives make a claim for private residence relief.

In practice, this usually only applies where the deceased owned the property with someone else who still lives there.

If PPRR doesn’t apply, Executors must report the gain and pay any CGT due within 60 days of completion.

Deductible costs

Just like when selling in your lifetime, the Estate can deduct certain costs from the sale price before working out the taxable gain. These include:

• Estate agent and conveyancing fees
• Mortgage redemption costs
• Broker fees

If solicitors are handling the Estate administration, part of their fees can also be deducted.

Annual CGT allowance

Estates have the same annual CGT exemption as individuals – currently £3,000 for the 2024/25 tax year (much lower than in recent years).

Executors can only use this exemption in:

• The tax year of death and
• The following two tax years.

After that, the exemption is lost if assets are still unsold.

Appropriation – using beneficiaries’ allowances

A useful tax planning tool is ‘appropriation’, where an asset is allocated to beneficiaries before it is sold.

This means the sale is treated as if it was made by the beneficiaries, not the Estate. Each beneficiary can then use their own CGT allowance in addition to the Estate’s allowance.

For example, if there are three beneficiaries, the gain can be spread across the allowances.. This can significantly reduce the overall tax bill.

Taking professional advice

CGT in Estate administration can be tricky, with rules that differ from those for individuals. Executors should always take professional advice before selling assets, especially where values have risen significantly since the date of death. This ensures that the Estate is managed properly and avoids unexpected tax bills.