A Will is one of the most important documents you can make and the sooner the better! With the right support it need not be daunting or something to put off.
The ADLAW Will service includes two home visits as standard. At our second meeting your Will will be signed and under my expert supervision you can be assured everything will have been dealt with correctly.
Life Interest/Property Protection Trust Will
*A full cost estimate will be provided with full terms and conditions.
ADLAW charges are highly competitive and do not attract VAT. Package prices are available for those wishing to make Lasting Powers of Attorney at the same time.
A Will enables you to choose who inherits and deals with your estate when you die. You can also use your Will to set out any other wishes you have such as funeral arrangements and care arrangements for young children (Guardians).
A Will provides reassurance and a legal statement of your wishes. Without a Will the intestacy rules govern both who deals with and who benefits from your estate. Friends, unmarried partners and co-habitees are not recognised.
ADLAW offers a professional service to those wishing to make a Will in the comfort of their own home.
Wills can be ‘basic’ and straightforward, or more complex including trusts.
By way of a guide a basic Will includes the following:
– provision of the appointment of Executors;
– provision of Guardians for children under the age of 18, if necessary;
– funeral directions;
– bequests (gifts of personal items);
– legacies (gifts of specified sums of money);
– simple directions as to the remainder of your estate;
– simple substitute provisions if, for example, a beneficiary dies before you.
More complex Wills
The key benefit of including a trust within your Will is that it offers added asset protection for those you leave behind.
Below are three different types of trusts you might consider including in your Will.
1. Life Interest/Property Protection Trust
Life Interest/Property Protection Trusts allow you to:
• protect your estate against potential future care fees;
• ensure children from a previous relationship inherit i.e. if you are a widow/widower/separated/divorced and find a new spouse/partner; and even,
• allow you to take control by ensuring your children inherit should your spouse/partner find a new spouse/partner after your death.
See What is a Life Interest/Property Protection Trust? for further information.
2. Discretionary Trusts
Including a discretionary trust in your Will can be a good way of providing for a vulnerable person without leaving their inheritance to them outright. This type of trust can provide peace of mind should you be concerned about money being wasted or put to bad use.
Before deciding to include a discretionary trust in your Will you will need to take advice on the Inheritance Tax (IHT), Capital Gains Tax and Income tax treatment of such a trust. If your residence is left to the trust your estate may not qualify for the additional IHT Residence Nil Rate Band allowance.
3. Disabled Person’s Trust
A disabled person’s trust can allow you to provide for a disabled person, without leaving assets to them outright and without affected any means tested benefits they might receive.
What is a Life Interest/Property Protection Trust?
It is possible to include a trust in your Will which gives someone a life interest in your property or other assets, without those assets passing to that person/beneficiary outright.
The person who is given a life interest is known as the life tenant. Upon the life tenant’s death the trust assets would then be distributed in line with the terms of your Will.
Life Interest Trusts can also be referred to as Property Protection Trusts. It is common for the person making the Will to simply leave their share of the home into the trust- with their ‘cash’ estate passing to their spouse.
Do Life Interest/Property Protection Trust restrict the Life Tenant?
Overtime these types of trusts have advanced and become much more flexible. Provided the flexible provisions are included, and careful thought given to who should be trustees, the trust should work for everyone.
The flexible provisions are designed to allow the trustees to deal with circumstances as they exist at the time the trust comes into being- i.e. upon the first death of a couple. If a life tenant wishes to move from a property they can. Any surplus income would be invested so as to produce an income for the life tenant. The trust can even include a power for the Trustees to advance some, or all of the capital in the trust to the life tenant (and even income and capital for other beneficiaries prior to the life tenant’s death, if required).
When are Life Interest/Property Protection Trusts useful?
Three of the main reasons for including this type of trust in a Will are discussed below.
- One example of when a couple may wish to include such a trust in their Wills is where the marriage or civil partnership is a second or subsequent one.
e.g. John (a widower) remarries Jane. John has two children (Jack and Jill) from his first marriage. John has a house which was paid for by him and his first wife, Mary. Jane can live in John’s property for her lifetime but the capital will pass to Jack and Jill upon Jane’s death.
- It is also possible that a person may be worried about their partner or spouse remarrying and wish to protect assets for their children before this event occurs.
e.g. Julie is concerned that she may die before her husband and decides to leave her share of the home to a life interest trust so as to ensure inheritance for her children.
- A further use of such a trust is to control the level of capital and income for the purposes of means tested benefits, such as care home fees.
e.g. Fred and Wilma are married. If Fred leaves his share of the house to Wilma (who then goes into care) the whole value of the home will be taken into account for the purposes of paying for care. Fred and Wilma’s children might not receive much by way of inheritance. If Fred had left his share of the home to a trust he could have ring-fenced at least 50% of the property for his children’s inheritance.
For the Will to work a couple must own their home jointly and as ‘tenants in common’. If required, ADLAW (for an additional fee of £45) can change any existing joint ownership from a ‘joint tenancy’ to a ‘tenancy in common’. The word ‘tenancy’ in this context has nothing to do with leasehold property. If the home is owned in your sole name you will need to make a gift to the proposed joint tenant (usually of half) for which the assistance of a conveyancer (property Solicitor or legal Executive) will be required.
Including a trust in your Will is not the same as giving away your property during your lifetime. Giving property away during your lifetime is generally not advisable- if you are considering doing this you will need to seek alternative advice.
When leaving assets to a spouse upon trust you should consider whether you are adequately providing for them. In some cases it may be possible for a spouse to bring a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
For a Will to be valid the person making it must have the mental capacity to understand the consequences of their actions.
The level of understanding required varies according to the complexity of the Will, the assets involved and any possible claims against the estate (Banks v Goodfellow (1870) LR 5 QB 549).
If I have any concerns regarding your ability to make a Will, with your permission, I am happy to work with your GP in order to confirm mental capacity.
If required ADLAW will record your Will on the National Will Register.
This provides reassurance that your Executors will be able to locate your final Will easily.
The content of your Will is confidential and will not be recorded.
The location of your Will would only be released to your Executors upon production of a death certificate.
If required ADLAW is able to arrange safe storage of your Will (and Lasting Powers of Attorney (LPAs)) with the National Will Archive for a flat fee of £7.50 per year. The National Will Archive currently has over 100,000 documents in safe storage
Alternatively, you may prefer to store your documents at home. There are risks involved in doing this which I would fully discuss with you.