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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask if you are married or live with a partner please?
do you presently know of any circumstances where you may have to enter into care or is this just something you are considering as a potential future risk?
Thank you. Is it at all possible to include spaces between words or is it difficult on the device you are using? Everything is appearing as one long line of text. May I ask your and your partners ages? Are you married? Finally do you have any children or other people you would wish to leave your monies to or is it each other you are primarily thinking of?
im 63 and my partner is 64 we are unmarried and have a son and a grandson we would like to leave it to
thank you. There are a number of ways in which you can consider protecting your property in the event that either of you had to enter into care in the future in these circumstances.
the first thing to say is that if one of you had to enter into care was the other was alive, because of the rules the council must abide by, the property cannot be considered for means testing. This is because the council are not allowed to include the property to means testing if your partner is living and vice versa.
one of the simplest ways you can consider is by preparing mirror Wills which incorporate something called a life interest trust. A life interest trust works on the basis that each of you own a half share in the property as is presumably the case, but rather than simply leaving that half share to each other, you leave it to each other in something known as a life interest trust. A life interest trust gives the survivor of the to review a right to enjoy the property but does not make a gift of ownership of the capital in the property. the advantage of this is that if the survivor of you To enter into care then the council would not be able to touch the property that was contained within the life interest trust. In addition, because of the rules the council have to follow, the other half share cannot be valued at market value but at a fraction of market value because the council must consider that the other half the property is owned by a trust.
drawing up new mirror Wills which incorporate a life interest trust can be done very simply through a solicitor, usually for summer between £200 and £400.
another approaches to actually transfer the property into a life interest trust now during your life. you are probably rather young to be considering doing this as in doing so, as above you will have the right to enjoy the property and can still downsize and move as you wish, but you will be depriving yourself of access to the capital. you may for example wish to downsize and use some of the capital you have leftover or you may wish to obtain a equity release mortgage. You could not do these things if you transfer the property into a life interest trust and so given your age, you would probably be better to consider preparing Wills as above rather than transferring a property into a life interest trust at this stage though it is certainly an option you could consider. in doing so, the entire property would be insulated from any council claim providing the council cannot prove that you transfer the property into a life interest trust in order to avoid care fees. this is very difficult for the council to prove unless you use a company which advertises such trusts as a means to avoid care fees. such schemes typically do not work because the advertising material is all the evidence the council needs to overturn it. If considering this approach, to ensure that you use a solicitor rather than an unqualified company.
is there anything above I can clarify for you?
this information does not tell me how to leave the property to my son and grandson which is my main priority
Sorry I will clarify this aspect...
a life interest trusts as we discussed above provides a right to enjoyment of the property for each other during your respective lives but not an absolute right to the capital. a life interest trust will provide for one or more beneficiaries to be entitled to receive the capital after the death of the survivor of you. These beneficiaries are called the remainder men.
based upon what you say,you would provide in your life interest trust that each of you are the life beneficairy (i.e are entitled to the enjoyment of the property for the remainder of your respective lives) and your son and grandson (and even if you wished any future grandchildren you may have) as the remaindermen of the trust. accordingly, after the death of the second of you, your son and grandson would be entitled to receive the capital from the property absolutely hence the property would pass to them absolutely after the second of your deaths.
life interest trusts are extremely tax efficient as they maintain your capital gains tax exemption for your property which you presently enjoy as your main home and unable in the above matter for you to protect the property from third-party claims during your lives but the property then to pass to your chosen beneficiaries (the remaindermen) after the second of your deaths.
is there anything I can clarify for you any further?
Sorry "unable" = enable above. My apologies for the typo.
If I can assist any further as the situation develops please do not hesitate to revert to me
thankyou so very much Joshua this has been most helpful to us and puts our minds at rest
A pleasure. if you think of any other questions in due course, you are welcome to return. There is no charge for any follow up questions you may have.
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dear Joshua does the mirror will incorporating life interest trust allow us to downsize if we wish and entitle us to use the capital whilst we are both still living?