Life is unpredictable, and while we naturally hope for the best, preparing for the unexpected is crucial. We often focus on things like retirement savings, property, and our estate, but the prospect of losing mental or physical capacity — even temporarily — is something many people overlook.

Preparing for potential incapacity isn’t just about financial protection, but also about ensuring that our wishes are respected when we can’t speak for ourselves. Illness, injury, or the natural effects of ageing can sometimes leave us vulnerable, so having a plan in place to manage both health and financial decisions during such times is incredibly important.

It’s almost like putting a safety net in place — not because we expect to fall, but because if we do, we want to be certain it’s there to catch us, and that it will catch us in the way we would have chosen.

One of the most empowering things you can do is take control of the situation by planning ahead. A Lasting Power of Attorney (LPA) is an essential legal document that allows you to appoint one or more individuals, known as your ‘Attorney(s)’ to make decisions on your behalf if you either authorise them to act whilst you have capacity (this option is only available for your financial LPA) or if you become unable to do so yourself, whether due to illness, injury, or incapacity. There are two main types of LPAs:

1. Property and Financial Affairs LPA – which covers decisions relating to your finances, property and other assets.

2. Health and Welfare LPA – which covers decisions about your personal health, where you live, medical care, day to day activities and well-being.

Here are some of the key reasons why preparing a Lasting Power of Attorney is important:

1. Control over who makes decisions for you

Without an LPA in place, if you lose mental capacity, decisions about your care or finances could be made by someone that may not have wanted involved, such as the Local Authority, family member or even a friend.

2. Peace of mind for you and your loved ones

Having an LPA in place gives both you and your family peace of mind. If something happens and you’re no longer able to make decisions, your appointed Attorney(s) will already be empowered to step in. This reduces stress and uncertainty for your family during a challenging time.

3. Prevents delays and possible complications

Without an LPA, if you lose mental capacity, your family might have to apply to the Court of Protection for a deputyship order. This process can be lengthy, costly, and stressful. An LPA avoids this situation, as it gives someone immediate authority once the document has been registered to step in and act on your behalf, when the circumstances arise.

4. Flexibility

You can specify exactly what decisions you want your attorney to be able to make. For example, with the Property and Financial Affairs LPA, you can choose whether your attorney can make decisions about your property immediately or only after you’ve lost mental capacity. Although this option isn’t available for the Health and Welfare LPA, you may wish to include preferences of instructions, which need to be carefully worded, on things like medical treatment, care options and even whether you want your attorney to make decisions about life-sustaining treatments.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

As it becomes more and more common for couples to live together without marrying or entering into a civil partnership, it becomes more and more important to understand what happens when an unmarried partner dies.

The government is also expecting to provide more rights for cohabiting couples.

“But we’re common-law married!”

Common law marriage does not exist.

The current law does not give special status to couples who live together but are not married or in a civil partnership. If you are cohabiting, the law essentially treats this as if you had bought a house with a stranger.

How to protect your money when buying a house together

Where unmarried people buy a house together, they may well each contribute different amounts to the deposit, and may also pay the mortgage unequally. These unequal contributions can be protected in a declaration of trust, which sets out who owns what share of a property. Without anything in writing, the presumption is that the property is owned equally.

If a married couple has a declaration of trust and then divorces, the court may deviate from it as part of the financial orders. That is not the case with unmarried couples – at least currently.

Inheritance tax

Gifts to spouses and civil partners are exempt from inheritance tax, whether they are made during lifetime or on death.

A gift to an unmarried partner does have a similar exemption and will instead use up the deceased’s Nil Rate Band. If the deceased is leaving their share of their house to their unmarried partner, the Residence Nil Rate Band is not available either, as the house is not left to a direct descendant. That means that if the estate is worth more than £325,000, there will be inheritance tax to pay. Depending on the size and composition of the estate, that could mean the house has to be sold to pay the tax, thus depriving the partner of their own home.

By contrast, a married couple leaving everything to each other on first death would pay no inheritance tax, and if they left everything (including the family home) to their children on second death, the threshold would be £1 million.

Why you need a Will

Currently, unmarried partners do not feature in the intestacy rules. This means that they would only inherit assets held as joint tenants, such as joint bank accounts and some properties. Assets held in the deceased’s sole name or as tenants in common would instead pass to their nearest blood relatives. The surviving partner’s only real option is to claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. However, they would have to have lived together for at least two years as if they were a married couple, and any claim would be limited to what they need for their maintenance (i.e. day to day living costs).

It is therefore particularly important for unmarried couples to make Wills where they have a declaration of trust for their property, as they have to own it as tenants in common.

In 2021 there were plans in the House of Lords to include unmarried partners in the intestacy rules, provided that they had been living together for three years as a married couple or had a child together. Without government backing, though, these proposals never went anywhere. Now, though, that might be about to change.

Government plans

The new government pledged in its manifesto to strengthen the rights and protections of women in cohabiting relationships. It will therefore be consulting on reforming cohabitation law. It is still very early days so details are sketchy, but could involve an opt-out scheme to protect cohabitees who are financially vulnerable. That said, any scheme that could resemble financial orders on divorce will have to tread a tightrope. Many couples decide not to get married because they do not want to risk losing their own assets on a split-up.

A recent poll by the Will-writing scheme, Will Aid, has revealed that 65% of people think the intestacy rules should include unmarried partners. Around three quarters of unmarried partners were unaware of what would happen on death if they did not have Wills.

Similarly, any change to the intestacy rules could be controversial. Many will believe that unmarried partners by definition have chosen not to leave their estates automatically to each other. If they say they want to ensure that the survivor gets the estate, they should either make Wills or get married.

How we can help

Whatever the government decides to do, there is only one way to guarantee that your assets will go to the people you want, and that is to make a Will.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

The recent case published regarding the late Margaret Baverstock highlights the importance of ensuring that the legal requirements to prepare and sign a Will are adhered to. In this case, the Judge concluded the deceased lacked the required capacity and that the Will signed eight days before her passing had not been validly executed commenting as follows:

Comments regarding Testamentary Capacity:

• ‘The deceased was also extremely frail and on her deathbed. In these circumstances, it was necessary to question Margaret to ensure her understanding.’

• ‘Merely reading out the document and asking if she understood it was not enough.’

Comments regarding the signing of the Will:

• ‘I am satisfied that the deceased had no idea what was going on. She was unable to act independently and, although she responded with a ‘yeah’ or even a grunt when addressed as mum, that was simply a response to being directly addressed and didn’t indicate consent to signing the Will or acknowledging its contents.’

• ‘She looked completely blank during the reading of the Will and on all, save one occasion, she only responded to her daughter.’

• ‘At no point did Margaret ask Lisa for help in signing the Will or direct her to sign the Will on her behalf. Nobody ensured that she understood what was happening by asking her questions about the contents of the Will or asking her to tell them her wishes, and she cannot fairly be said to have signed the Will.’

As there was no previous Will, the Judge confirmed that as the Will was in fact invalid the intestacy rules applied which resulted in the estate being split equally between the deceased’s two children, one of which would have received nothing if the validity Will had been upheld.

To assist with mitigating claims being made in respect of the validity of a Will being prepared, I have outlined some key points to bear in mind when preparing and signing your Will:

1. Capacity to Make a Will

• You must be at least 18 years old.

• You must be mentally sound and capable of understanding the nature of the Will, what it contains, and the consequences of making the Will. If there are any concerns, then a capacity report will usually be requested by the Legal Advisor. They will also prepare a detailed note on file documenting the circumstances in respect of the preparation of your Will, reasons why the Will was being prepared in that way and their considerations in terms of capacity, adding a layer of protection to your Will.

2. Signing the Will

• The Testator must sign the Will in the presence of two independent witnesses. These witnesses must be present at the same time and watch you sign the Will.

• Witnesses cannot be beneficiaries (people who stand to inherit from your Will), or the spouses/civil partners of beneficiaries, to avoid any conflict of interest.

• If you are unable to physically sign the Will, you can have someone sign it on your behalf in your presence, but there are additional legal requirements to comply with depending on the circumstances.

3. Witnessing the Will

• After you sign the Will, your witnesses must sign the Will in your presence and in the presence of each other.

• The witness should add their full name, address, and occupation next to their signature.

4. Changes to the Will

• If you want to amend your Will, you can create a codicil (a legal amendment to your Will) or make a new Will entirely. If you’re changing your Will, you must follow the same signing and witnessing procedures as before.

• It’s also a good idea to keep your Will updated to reflect any changes in circumstances (e.g., marriage, divorce, births, or deaths).

Here at Franklins Solicitors we offer a comprehensive Will writing service.  For further advice and assistance, please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

Your Will is the most important document you will ever put your name to. That means that you should ensure that you keep it up-to-date and treat it as a living document.

This article considers some of the main events that should trigger you to review your Will.

Under the general law, if you marry or enter into a civil partnership, your Will is automatically revoked unless it states otherwise.

As a result, many unmarried partners will have a clause in their Wills confirming that they are made in anticipation of marriage and so will not be revoked if they go on to marry each other. Even if your Wills have such a clause, it is still sensible to review your Wills after getting married to ensure that they are still fit for purpose. For starters, anything left to a spouse or civil partner is exempt from inheritance tax, but this is not the case for transfers between unmarried partners.

By contrast, divorce does not automatically revoke a Will in the same way that marriage does. Instead, the Will is still valid, but is treated as if the now ex-spouse had died before you. Such are the quirks of legislation that is almost 200 years old!

This means that unless the Will states otherwise, any appointment of them as Executor or Trustee will fail, as will any gift left to them. If, therefore, you are still on good terms with your ex-spouse and you still want them to benefit from your Estate, you may need to make a new Will stating that any mention of them is not to be affected by your divorce.

The birth of a new child is a prime time to review your Will, and here we discuss some points to bear in mind when you have children under 18.

Some Wills mention each child by name. In that case, the new child will not inherit anything and you would need to make a new Will to include them.

Of course, your children may well go on to have children of their own. There are many ways to include grandchildren in your Will, which could include:

• Leaving a legacy (i.e. a fixed sum of money) to each grandchild
• Leaving a fraction of the Estate between all your grandchildren
• If one of your children had died before you, leaving their share of your Estate to their children (i.e. your grandchildren) instead
• Creating a discretionary Trust to allow your executors to let your grandchildren have part of your Estate as and when they see fit

We would be very happy to discuss these options with you.

If you have remarried but still want to protect your children from previous marriages, you can include a Trust in your Will. This can ensure that your new spouse can benefit from your Estate while they are alive, but they do not own it outright. On their death it will go down to your children.

Many types of business asset benefit from Business Property Relief, which can create a substantial inheritance tax saving. Agricultural assets can similarly benefit from Agricultural Property Relief.

If you start a business, you should consider the implications for both inheritance tax and capital gains tax. This is very likely to involve updating your Will, to ensure that your business (a) is left to people who want to continue running it after your death and (b) is left in the most tax-efficient way. If you are not careful, you could end up wasting the relief, and in the worst case scenario this can actually end up creating more inheritance tax!

The same is true if you sell your business, as the reliefs will no longer be available. You should consider what the tax position will be after you sell, and take the opportunity to carry out some Estate planning. This could involve changing your Will to remove any clause dealing with your business or agricultural property, as well as making gifts during your lifetime in order to reduce the size of your estate.

You may want to ensure that all your children receive an equal amount from you, but if you have already been making lifetime gifts to them, some of them might have already received more than others from you.

You could therefore simply leave more to the others in your Will. However, this will be problematic if you subsequently make further gifts, and then all the amounts will be out of kilter. To prevent this, you can instead include a clause to take all lifetime gifts over a certain amount into account when calculating how much each of your children receives from your Will. This also means that you would not have to keep making new Wills each time you make a gift.

Since you made your last Will, you may have moved to another country but kept some assets in England and Wales. Some types of asset will pass under English succession law, even if you are no longer domiciled there. In that case, you should ensure that you still have an English Will that deals with the assets there, even if you also have a Will dealing with your foreign assets.

UK nationals who own property in many EU jurisdictions can make an English Will that covers worldwide assets and includes a choice for the foreign assets to pass under English succession law.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

If you and your sibling have both been appointed as attorneys in a Lasting Power of Attorney (LPA), you may wonder how this will work in practice. In this blog I will explain the roles and responsibilities you both have as attorneys and what you can do should an issue arise between you. 

Your role and responsibility as an attorney

Being appointed to act as an attorney for someone is a serious responsibility. In choosing you to act, the donor likely felt you are a trusted individual who can take on the responsibility necessary for their future health and financial decisions. They likely believe you will make decisions in their best interests for when they become unable to.

Acting jointly as an attorney  

When acting jointly with your sibling as attorneys, your roles and responsibilities are similar to those of a sole attorney, but with some additional considerations due to the shared responsibility. Here are some key aspects of your role:-

1. You must work closely with your sibling to make decisions in the best interests of the donor.
2.  Strive to reach a consensus on decisions whenever possible. This may involve discussions, negotiations, and compromise to find solutions that align with the donor’s wishes and needs.
3. Hold each other accountable for fulfilling your duties and responsibilities as attorneys, including keeping accurate records, managing the donor’s affairs responsibly and avoiding any conflict of interest.
4.  Inform each other of any significant decisions or actions regarding the LPA. Regular communication ensures transparency and helps prevent misunderstandings.
5. Consult with each other as well as the donor if possible, when faced with important decisions or situations that may impact the donors welfare or interests.
6.  Ensure all actions taken by you both comply with the law, regulations, and the terms of the LPA.

By working together effectively and fulfilling your duties conscientiously, you can ensure that the donor’s best interests are prioritised and that their affairs are managed responsibly and ethically.

What happens if we cannot agree?

Conflict resolution

In the event that you and your sibling have disagreements, the following options are available to you when trying to resolve disputes:

1. Reaching an agreement: the first step would be to openly communicate with one another and express your concerns and try to reach a compromise.
2.  Obtaining legal advice: seeking legal advice from an experienced solicitor could help provide clarity on your rights and options. They can review the LPA document, assess the situation and offer guidance as to the best course of action.

Applying to the Court of Protection: if the disagreement is still ongoing and cannot be resolved through negotiation or obtaining legal advice, then applying to the court for intervention might be the alternative. The court can make decisions regarding the LPAs, including appointing replacement attorneys and providing guidance on specific issues.

Summary

Every dispute is different and depending on the circumstances, one dispute might take a different approach to another.

Obtaining legal advice may be a good option for you as it will provide clarity on your options and will not escalate matters too much.

Our Wills, Trusts and Probate team or our Litigation and Dispute Resolution team can advise you on next steps. Please give us a call on 01908 660966 or 01604 828282 or email info@franklins-sols.co.uk.

If you have children under the age of 18 years, your Will needs to set out what will happen to them if you die before they turn 18 as well as who is responsible for looking after anything you leave them.

For our purposes there are three roles that matter: executors, trustees and guardians. These can all be filled by the same people but the responsibilities of each are different.

Your executors are responsible for the financial aspects of your estate: applying for probate, closing down bank accounts, paying any liabilities and distributing the rest to the beneficiaries in accordance with your Will. Your executors will also be the trustees of any Trust included in your Will, which we expand on below.

Your guardians are responsible for looking after your children day to day.

In the vast majority of cases, a guardian can only be appointed by a person with parental responsibility or by someone who themselves has already been appointed as a guardian.

If a child’s parents are married or in a civil partnership when the child is born, both parents automatically have parental responsibility. If not, the mother still does automatically, but the father would only have it in certain circumstances, e.g. if he is named on the birth certificate or he goes on to marry the mother.

We would strongly suggest including a clause in your Will in which you appoint guardians for your minor children. This appointment would take effect when both parents have died and would last until the child’s 18^th birthday.

For practical purposes, it is best if both parents appoint the same guardians in their respective Wills.

The position is more complicated where there are stepparents; in that case we would highly recommend discussing this with us at a meeting.

As mentioned above, when a minor inherits someone’s Estate, it must be held on Trust for them until they are at least 18.

For a Trust to work properly, there need to be at least 2 trustees so this is the minimum number you should appoint. It is possible to appoint just one, but then that person would need to appoint a second trustee to act alongside them. This may not be someone you approve of, so if you want to retain some control you should appoint at least two executors/trustees.

You may not want your children to become absolutely entitled to their share of your Estate the moment they turn 18. Other common ages you can specify are 21 and 25, because there are often inheritance tax benefits to Trusts where the children are entitled to their share before they turn 25. Ultimately, though, it is entirely up to you. Whichever age you choose, your trustees will still be able to let them have some of the money before then, if e.g. they need it for school fees or private medical care.

That said, there are several other types of Trusts available, and we would be more than happy to discuss these with you to find the one that best suits your aims.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

Interestingly, a lot of people know about the importance of putting Wills in place but very few know about the importance of putting Lasting Powers of Attorney in place.

Lasting Powers of Attorney are crucial if you were to become mentally and/or physically incapable. Life can be unexpected, and Lasting Powers of Attorney should not therefore just be considered as something to put in place in later life.

According to the Alzheimer’s Society, it is estimated that by 2025, more than 1 million people in the UK will have dementia and currently, one in five people over 85 are already suffering from it, with rates significantly higher among women than men.

What are Lasting Powers of Attorney?

A Lasting Power of Attorney (LPA) gives another individual the legal authority to take care of your financial affairs or health and welfare matters in the event you are no longer able to do this for yourself.

If you do not have an LPA in place and later lose capacity, your relatives may face long delays and crucially, incur a lot of money in applying to the court of protection to obtain a deputyship order to take control of your assets and finances. Critically, you have no control over who makes this application which could mean someone is appointed to manage your affairs who you would not have chosen yourself.

What types of Lasting Powers of Attorneys are there?

There are two types of LPAs: –

1. Property and Finance; and
2. Health and Welfare.

Property and Finance Lasting Power of Attorney

• This covers decisions relating to financial matters. This extends to the attorney’s ability to buy and sell property, dealing with your bills, managing your bank accounts and investing your money.

Health and Welfare Lasting Power of Attorney

• This covers decisions relating to your health and wellbeing, also known as a Personal Welfare LPA. This extends to the attorney making decisions about where you should live, your diet, your medical treatments and who you should have contact with. It also provides you with the choice as to whether you would want your Attorneys to give or refuse consent to life sustaining treatment on your behalf.

It is important to highlight that an attorney under a property and finance LPA can make decisions for the donor whilst they have capacity if the donor authorises them to do so, whereas a health and welfare LPA can only be used once  the donor has lost capacity.

Choosing an attorney

It is important to ensure that you are appointing attorneys whom you can trust implicitly, they must be over the age of 18 and not bankrupt (in terms of the finance LPA). The attorneys you choose should be willing to take on the role as it is a serious responsibility. They must ensure that they have your best interests in mind when making decisions and they should also adhere to the principles set out under the Mental Capacity Act.  As a donor, you can restrict or specify the types of decisions the attorney can make, and provide guidance.

Whilst you can draft Lasting Powers of Attorney yourself, it is recommended that you seek legal advice as a Private Client solicitor can talk you through your options, explain the authority conferred by the LPA in detail and discuss whether you wish to add any guidance or restrictions. Seeking specialist legal advice will also ensure that the paperwork is completed correctly, that your LPA is properly registered and therefore valid, and most importantly, that it reflects your wishes.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

If you are thinking of going through a divorce, have been divorced or are separated but legally married, it is important to consider what will happen to your Estate when you pass away and whether it is in line with your wishes.

What happens to my Will whilst I am waiting for my divorce to be finalised?

If you are currently going through a divorce and are waiting your divorce to be finalised, your existing Will is still valid. If you have appointed your spouse as an Executor and/or Trustee and they are a beneficiary in your Will you should consider doing a new Will to reflect your current wishes.

If you do not have a Will, your Estate will pass under the rules of intestacy which ultimately means your spouse will inherit most or all of your estate.

What happens to my Will once my divorce has been finalised?

Once your divorce has been finalised, your Will is still valid. However, your ex-spouse will be treated as though they have passed away. A divorce does not automatically revoke a Will.

If you have appointed substitute Executors and/or Trustees and have specified default beneficiaries, this will take effect.

What happens if I am legally married but separated from my spouse?

Your existing Will will remain valid if you are separated but legally married. Therefore, it is important to consider doing a new Will if your current Will does not reflect your wishes.

What happens if I remarry?

Marriage automatically revokes a Will unless the Will specifies that it is in contemplation of marriage.

If you are thinking of getting remarried or have remarried, you should consider doing a new Will.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

In the realm of estate planning and inheritance, intestacy laws play a crucial role in determining how a deceased person’s assets are distributed when they pass away without a valid Will. These laws are in place to provide a framework for inheritance when the deceased did not express their wishes through a Will. In this context, the concept of a “statutory legacy” has gained prominence, representing a fixed amount or portion of the estate that is guaranteed to be passed on to certain beneficiaries, usually the surviving spouse or civil partner. Recently, there have been discussions and changes to the intestacy statutory legacy, aiming to ensure a fair distribution of estates.

Defining the Intestacy Statutory Legacy

The intestacy statutory legacy is the minimum amount or share of the deceased’s estate that is protected by law to be given to certain individuals, even if there is no Will in place. This amount is reserved for the spouse or civil partner of the deceased, recognising their rights and needs in the absence of explicit testamentary instructions.

The Need for Change

Over time, societal norms, family structures, and economic conditions evolve, necessitating updates to these laws to reflect the changing landscape. One common issue that has arisen is the sufficiency of the statutory legacy, particularly in scenarios where the value of the estate is high or when the surviving spouse or civil partner faces financial challenges. In response, lawmakers have revisited these laws to ensure they adequately address modern concerns.

Recent Reform

Following a recent review, the statutory legacy has increased to £322,000 for deaths which occurred on or after 26^th July 2023. For deaths prior to this date, but between 6^th February 2020 to 25^th July 2023, the statutory legacy remains at £270,000.

In essence, this means that should you pass away without a Will in place from 26^th July 2023 onwards, the first £322,000 (the statutory legacy), together with all personal possessions, will pass to the surviving spouse or civil partner and then the remainder of the estate will pass as to 50% for the surviving spouse or civil partner and the remaining 50% will be divided between any children equally.

It is important to note that if there are no children, then the entire estate will pass to the surviving spouse or civil partner, which remains unchanged.

Is a Will still needed?

Despite this recent change, it is still important to have a Will in place as the intestacy rules still do not take into account more complex situations. For example, the intestacy rules do not provide for cohabiting couples so, for illustrative purposes, if you own a property as tenants in common with your partner, and you pass away without a Will in place, your share of this property will not pass to the survivor of you but instead via the intestacy rules which may mean that the survivor has to sell the property to release the equity, leaving them in a vulnerable position.

A Will also does a lot more than allow you to decide who is to benefit from your estate. It will allow you to appoint guardians of any minor children, leave specific gifts to certain individuals or charities and allows you to appoint individuals or organisations you trust to administer your estate effectively.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

A report published by The Lancet Public Health in 2018 suggested that the number of adults aged 65 and over needing 24 hour care will almost double by 2035. There has been a lot of media coverage over the years in relation to homes being sold to fund care home fees as for most people, the family home is their main asset. The question we get asked most from our clients in planning their futures is: “What can I do to prevent this from happening?”

Photo by Matthias Zomer from Pexels

Gifting Property

A common misguided perception is that you can gift the property to your intended beneficiaries during their lifetime and this will prevent it from being sold to pay for care fees. While you can do this, this option is not always effective and it exposes you to a number of risks you should consider. These risks sometimes outweigh the risk you are trying to avoid.

You may indeed run the risk of losing the property in other ways, for example, one of your intended beneficiaries might become bankrupt and their share of the property will be acquired by the Trustee in bankruptcy. Alternatively, one of your intended beneficiaries may go through a divorce and your property will be considered part of their matrimonial assets when finances are being dealt with. In essence if you gift your property away, it no longer forms part of your assets and you have no control of what happens to it. This limits your ability to control the property and your options for the future.

Trusts

What you can consider doing is putting your property into a Trust. This provides an element of protection so that the home does not usually have to be sold to fund care home fees. The benefit of writing the property into a Trust is that you can protect some or all of it from being used to pay for care home fees in the future – but still retain security that you have somewhere to live.  There are possible consequences to setting up a Trust over your home such as what if your Trustees go away or are hard to track down, or if they are professionals have they been closed down, say by the SRA.  What ongoing costs are there?  In addition to this uncertainty the local authority can elect to ignore the Trust you set up on the basis you are doing it to avoid care fees.  A better way might be to use your Wills to manage what happens to your home.

A carefully drafted Will can provide that a share of the family home passes into a Trust on first death, which may give the survivor a right to occupy. With care, such a Trust will ensure that the capital will be preserved and instead pass to the intended beneficiaries. A Trust of this type can be drafted flexibly to allow the survivor to ‘down-size’ or move property.

For further information in relation to putting in place Wills and Trusts in place, contact the Private Client Team on 01908 660966 / 01604 828282 or email PrivateClient@franklins.co.uk.