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 clarify whether they intend to pay you for the half share or whether this is to be a gift please? If the former, do they intend to buy at market value or undervalue?
They would buy half of the property at half market value. I would gift them the other half
Thanks. Would they require a mortgage?
Is it your intention to gift them the other half on your death immediately?
sorry should read
Is it your intention to gift them the other half on your death OR immediately?
Thanks. Based on what you say you will have cash equivalent to half the value of the property and are planning to give away the other half. Is it your intention to continue to live in the property - I believe this is the case from what you say initially?
Yes I would remain in the property and intend to give my two sons some of the money from the sale of half the property
Thanks. There will a few issues with this. Firstly your daughter may have one or two difficulties obtaining mortgage finance for this transacition. She may have to approach a mortgage broker to source mortgage finance as some lenders do not like part parental gift properties. Many are happy with it thought but I just mention it for the sake of completeness.
Thanks. Should she be successful in obtaining a mortgage, how can I protect the gifted half should I need to go into long term care if I can't self fund the care from my savings
In terms of what you propose you will need to be cautious. Consider that what you propose is to sell half your house, and then gift the money you receive to your son and gift the other half of the house to your daughter. This would leave you without your house and without the money you received from your daughter. This would mean that you could be asked to leave your own home - I am certain your daughter would never ask you to leave but one has to consider the unknown future. You would have to consider if god forbid anything happend to your daughter and someone else inherited what would then be her property - her partner or husband for example. However unthinkable or unlikely you should not lightly risk your security of a roof over your head as the unthinkable can and does happen to people.
If you were my client and you did not have substantial other assets or property besides your main house I would be advising you strongly against your proposal as it leaves you vunerable. It may be better to consider placing some of the property into a lifetime trust for your children and consider leaving the property to them after your passing. If it is important that your daughter buys into the property now, then you could make the sale to her subject to a continuing right of occupation for you but this is complicated by her needing a mortgage and so still not risk fee for you.
A life interest trust can have the benefit of protecting much or all of the property from care fee claims whilst allowing you to continue to reside in it and allowing it to pass to your chosen beneficiaires after your death. It can give you to some extent the best of both worlds.
A local solicitor will be able to assist you in setting up such a trust for your property. Essentially what happens is whatever share of the property you choose between 1-100% will go into trust and cannot be touched by the local authority if you later go into care providing you do not know of any reasons you may have to enter into care at the time you make the transfer to trust. Although you have placed some or all of the propery into trust you can however continue to live in the property free of charge for as long as you wish.
Is there anything above I can clarify for you?
Does the above answer all your questions or is there anything I can clarify or help you with any further?
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Thanks. Should I put the proprty into trust for my children, can any other party force the sale of the property. For example should any of my children claim bankruptsy
I would not wish to tell you what you should do. It is important you make a decision you are happy with one you are in possession of all the information you need to make a decision. If you believe there is any possibility in the matter how remote that you may in the future wish to call upon some of the cash locked up in your property you may wish to decide to put in less than 100% of the value of the property into a trust. Alternatively, you can put in 100% of the value of the property but include powers and the trust whereby some of that value can be returned to you should the need arise..The terms of a life interest trust provide that you have a right to occupy the property for as long as you wish and no other party has a claim upon that property in the trust during your lifetime including any local authority or child (bankrupt or not).After your death, you can choose beneficiaries you wish to benefit such as your children or grandchildren in any proportions you wish just like you can in a will and the property passed to them after your death (just like it would under a will).
Such trusts are accordingly a popular means bh which people choose to simultaneously protect some of their assets from care fee claims whilst also safeguard their own security. There is of course no reason you cannot still have your daughter living with you - in practice nothing changes.
Is there anything else I can help you with or does the above answer your questions for now?
Thanks. You have been very informative and of great help in this situation.
I am glad the above was of assistance.
Good luck with putting something in place you are happy with. Any larger solicitors office locally will have a private client department that can assist in setting up the trust.
If I can assist any further as the situation develops please do not hesitate to revert to me