The Family Protection Trust
After a lifetime of paying taxes, national insurance, VAT and other contributions, most of us would expect care to be provided if required in later life. Well, the good news is that will be. The bad news is that it is “means tested”. If you have assets valued over £23,500, including your house and savings, then you will be expected to pay for that care yourself.
With care home fees running at around £25,000 to £55,000 per annum, it does not take long for even a healthy nest egg accumulated over a lifetime’s hard work, investment and prudence to disappear entirely. This money was supposed to pass to your children and grand-children.
- Did you know that 1 in 3 women and 1 in 4 men over 65 will go into care?
- Did you know that your Council can take all your assets including your house to pay for the care?
- Only the last £14,500 is protected!
What can be done to protect my estate for my children?
As far as we see it you have four options:-
1. You could do nothing and hope for the best.
2. You could transfer your assets to your family. By doing this you may protect your assets but you lose control. There are many things that can go wrong with this, your family may have to pay Capital Gains Tax on the asset, they may get divorced or go bankrupt, (possibly resulting in you losing your home) or simply fall out. The local authority could challenge the transfer as deliberate deprivation of assets. Hence we wouldn’t recommend this.
3. You could buy an Immediate Care Cost Insurance Plan. This a very expensive option and does not avoid probate costs.
4. Or you could transfer your assets including your house into a Family Protection Trust. This allows you to have total control over your estate.
1 – What is the family protection trust?
It is technically a Settlor Interested, Lifetime Discretionary Trust. But a good way to think of a family protection trust is to think of it as a solicitor created “safety deposit box” into which you can place your home, savings, stocks and shares, life insurance and/or any other assets that you wish to keep safe as you go about your daily life.
Whilst in the box, you still have full use of the contents and can add to them, sell them, replace them, borrow from them or pass them down to your family as you wish. However, if a third party or outside body tries to claim them, they cannot get access and cannot force you to give them the key.
The reason that a trust can safeguard your assets and property so effectively, is that the law regards the trust itself as owned by a completely separate person to you and, if the property in which you live and the investments from which you receive an income are (in the eyes of the law) owned by someone other than you, it is very difficult for anyone to take them from you.
After your death, the safety deposit box (i.e. the trust) and its contents pass down to the beneficiaries that you have chosen to receive them and they can either carry on using the trust themselves, enjoying the same protection that you had, or they can bring it to an end and share the contents out.
The inheritance due to any unreliable beneficiaries can be protected by the Trust and be passed to them at a more appropriate time. (See questions 23 and 24.)
If you originally planned to leave everything to your surviving spouse or partner, but have children from a previous relationship or marriage that you would like to ultimately benefit, then the Trust can be used to protect their intended inheritance.
The value of the Trust won’t be eroded by the cost of administering your estate (probate costs) or by the cost of residential care in later life, if needed.
When the Trust ends your Trustees will pass the assets to your beneficiaries without having to follow any complicated processes or procedures and without having to apply for a Grant of Probate, as the trustees would deal with all of this as part of the trust administration.
2 – But my family will deal with things after my death
The procedures that your family has to follow when you die are often not as straight forward as you might expect. If your Will contains a Trust for example, this needs to be managed too. The cost incurred by your executors in gaining specialist help from a solicitor or bank could run into many thousands of pounds. Banks typically charge between 3% and 5% of the whole value of the estate.
Even if the family decides to take on the job, the process involved in applying for the Grant of Probate can be a very lengthy, time consuming and frustrating job. Your family may not have access to any part of your estate for up to a year or even longer in some cases.
3 – The cost of care
Currently if you own assets above £23,250 and need residential care in later life you are expected to pay ALL the costs and may have to sell assets such as your home in certain circumstances. However, if you have already placed your assets in to a Family Protection Trust, while in good health and the Trust was set up for good reasons, then it is highly unlikely that they can be used toward these costs.
4 – But my family will look after me
Hopefully you will never need to go into residential care but unfortunately 1 in 3 women and 1 in 4 men over the age of 65 do go into residential care so it can never be ruled out.
We are all living longer, and so the chances that we might need residential care later in life are increasing. Whilst family often start out with the best of intentions in wishing to take care of you, in reality it could be quite a difficult task and may not always be a realistic option. Moving into residential care often happens after suffering a fall at home or as a result of other previous health problems; the decision is sometimes taken out of your control.
5 – Is it worth it?
Placing assets into a Family Protection Trust reduces any costs in relation to administering your estate, and potentially saves your estate being eroded by around £35,000 to £55,000 a year (the average cost of residential care in England and Wales). Doing nothing will mean extra costs and additional work for your family, and the loss of further assets before your death if you need long term residential care. The cost of a trust is usually less than the cost of one month in a residential care home, and much less than the cost of probate through a bank or solicitor.
6 – Who should be the trustees of my family protection trust?
Though we start the process and gather all the information needed, we use solicitors from WW & J McClure to draw up the Trust Deed and administer the trust as trustees. They are familiar with acting as Trustees. Most of our clients prefer to appoint these solicitors as their Trustees in addition to a delegated family member and themselves. This ensures independence; it also means that experts are at hand. You control the Trustees - you can appoint new Trustees and remove existing ones if you wish to do so. In most cases you will be a trustee of your own trust so you clearly remain in complete control.
7 – Can I trust the solicitors?
Yes, solicitors are professional highly regulated people and they are NOT beneficiaries of the Trust. They ensure that you keep control. During your lifetime the solicitors will always vote with you, which means that you make all the decisions and cannot be outvoted. They cannot benefit from the Trust in any way and like all solicitors they are supervised and controlled by the Law Society. They are bound by the terms of the Trust, a copy of which you receive before signing.
8 – Why do I need two solicitors?
If your Will leaves your estate to more than one person then it is important that there are two Solicitors as Trustees to outvote the remaining family member, otherwise he or she could take control. With two Solicitors, this ensures that what you want to happen after your death actually will happen. The two solicitors will follow the wishes expressed in your Will.
9 – What about ongoing fees?
There are annual fees, but they are kept as low as possible, normally £95 per year (all inclusive) rising to a maximum of £250 per year dependant on age.
9a- What are the annual fees for?
They enable McClure to deal with the administrative and regulatory costs of Trust administration. In particular, the annual management charge will cover:
- The costs of registering Trusts with HMRC where required
- The costs of preparing Trust accounts for HMRC where required
- Proactive management of the trust
- A full annual review discussion with the clients.
9b – Why do McClure need an annual discussion with the clients?
The annual review will involve a discussion with the clients to review their circumstances, for example, have they inherited money, has the value of their property held in trust increased significantly, have they fallen out with a family member, also the discussion serves as a reminder to some clients that they still have the Trust and how it works.
10 – Can I change my mind?
Yes – since YOU control the Trust you can transfer all or some of the assets back into your name at any time. Transferring a property would entail a conveyance fee, much the same as any transfer of property. Cash investments may be subject to a product provider standard terms of business, but there will be no charge by the Trustees.
11 – What happens if one of us dies?
Nothing normally, the Trust, and the protection it gives, simply continues as before until the second person dies. The survivor continues to retain the benefit of the Trust.
12 – What happens if one of the trustees dies?
A new Trustee is simply appointed to act in his/her place – this would of course be someone of your choosing.
13 – Do I still need to make a will and a lasting power of attorney?
Yes. Anything you put into the Trust will be distributed in accordance with your expressed wishes and normally in accordance with your Will. The Will also distributes anything you own when you die that you haven’t put into Trust.
The Lasting Power of Attorney document still enables your appointed people (Attorneys) to manage what assets that you didn’t put into the Trust whilst you are alive but are unable to manage yourself.
14 – Who can set up a family trust?
Any person who is mentally capable of making such decisions.
15 – What type of assets can be placed within the trust?
Commonly, clients place their house and savings within the Trust.
16 – Can I withdraw my savings if I wish?
Yes you can withdraw some or all of your savings whenever you wish.
17 – Are there any assets which cause a problem if they are placed within the trust?
Any assets which might create an immediate Capital Gains Tax charge. This includes any property that is not your principle private residence, but this merely means that specialist and individual care is needed when considering your options (which is exactly what we provide). It does not mean that nothing can be done. ISA’s are a problem but can be converted to a similar savings account.
18 – Can other assets be added later?
19 – Is there any limit on the value of assets placed within a family protection trust
Technically no – but if a client is placing assets valued in excess of his or her available Nil Rate Band (currently £325,000) within the Trust, this would create an immediate charge to lifetime Inheritance Tax (20% on the value above the nil rate band). A husband and wife can create two trusts, each capable of holding up to £325,000 (£650,000 in total) of assets without any tax.
20 – What can be done if my / our home is worth more than the nil rate band?
We can modify the title deeds such that for example 90% of the house goes into trust. Then the majority of your home would be protected and there would be no tax charge.
21 - When is the best time to set up a family protection trust?
As soon as possible.
22 - Who would be the beneficiaries of the trust?
Just as you choose who benefits from your Will, you also decide who should benefit from the Trust. Usually these are the same people, but not always.
23 - What if one of my children has a shaky marriage?
The trust can be of tremendous help here. It may not be advisable to transfer assets to your children if, for example, they are involved in a “shaky” marriage or they have various dependency (e.g. alcohol, drugs, gambling) problems. The Trustee’s have the ability to withhold the funds in this situation, until they feel it is advisable for the funds to be paid out.
If one of your children has a tendency to fritter away money the trustees can ensure he or she only receive funds when they need them for legitimate purposes.
24 – One of my children no longer keeps in touch with me, I have excluded him/her from my will but I understand they can still make a claim and may receive a chunk of my estate, can the trust help me to prevent him/her from receiving anything?
Yes. Unfortunately under the Inheritance (provision for family and dependents) Act of 1975, children have locus standi (the legal right) to claim on their parent’s estate, even if you have tried to exclude them in your will. A claim on your estate can cause severe delays, and the court costs can seriously diminish your estate value. The Family Protection Trust bypasses this potential problem. So long as the house / funds have been in the trust for at least six years, your trustees will only pay out to the beneficiaries of the trust. Even if you don’t survive the 6 year period, the fact that the assets are in a Trust will make it much more difficult (and therefore much less likely) that a child will pursue a claim.
25 – How long does the trust last and in what circumstances does it end?
Technically the Trust lasts for 125 years (known as the perpetuity period) but it will usually be distributed by the Trustees on the death of the Settlor or the Settlor’s spouse.
However, there may be circumstances where it is desirable to continue to run the Trust for longer. This may be the case, for example, if one of the beneficiaries is disabled, or going through a divorce or a bankruptcy. A protected, managed fund is advantageous in these types of cases, which is the primary reason for considering a Trust in the first place.
26 - What if I wish to sell my present home & purchase another?
If you wish to move home after placing the house in to a Family Protection Trust you can do so. The paperwork would be signed by the Trustees but there are no restrictions on you. Any surplus cash is still protected by the Trust and will simply be added to any other savings and invested by the Trustees. A normal conveyancing fee would apply.
27 - What if I need some of the savings within the trust?
The Trustees will transfer funds from the trust back into your name if and when this is required.
28 – What happens if one of us becomes incapacitated?
Nothing. The remaining Trustee simply continues. If your assets were not in the Trust, your family might need to go to Court for a Guardianship Order which is a nightmare.
29 - I have purchase a house with my partner but I also have children from a previous marriage can the trust help protect my share of the home for my children?
Yes – If you were to die before your partner, the solicitors at McClure would check your attendance notes (made at the time of setting up the trust). They would realise that your main concern was protecting your share of the home for your children. Being trustees of your share of the home, the house cannot be sold without their signatures. Hence (unlike the property protection trust, which can suffer from the surviving partner selling the house if you died and not looking after his/her partners children) they will make sure that your children’s interest are fully protected.
30 - Is the trust guaranteed to work for care home fees?
As the law stands, and provided you can satisfy the qualifying rules at the time you set up the Trust then there should be no problem. You are always assured of all the other benefits of setting up the Trust and could save many times the cost of the Trust in Probate fees and other costs alone, depending upon the size and complexity of your estate.
31 - What happens if I go into care?
Your family should contact McClure’s “Point of Need” department from then on McClure will deal with the local authority while your family take care of you.
32 – Will I end up in a care home of poor quality?
If the local authority find an appropriate place for you that is in your local area and meets your needs and the fee is for example £800 per week. But you or your family wished to upgrade to what you believe to be a better care home which costs £900 per week your family can pay the additional £100 top up fee. This fee can come from the trust.
33 - Why can't we simply give our house to our children?
A. Giving your house to your children may be interpreted as "deliberate deprivation of assets” or a “gift with reservation of benefit” (GROB) particularly if you carry on living there and do not pay market rate rent. Local authorities can take the property back from the recipients, if they can cast doubt that one of the objectives of the transfer of ownership was to avoid care fees, (deliberate depravation of assets) or avoid inheritance tax.
Please note - you should think very carefully before giving the whole or part of your property away to children or other family members in your lifetime, because you could become homeless should your children divorce or get into debt or become bankrupt.
34 – Is the plan useful for inheritance tax planning?
This type of Trust will not avoid inheritance tax being charged on the trust contents. However it can help with your children’s inheritance tax. Surprisingly often when the parents’ estate is added to the children’s estate, the children are faced with an IHT liability. The Trust can help with this as when you die, the assets are there for your children, but it is not part of their estate hence not considered for their Inheritance tax calculations. This is called Generational IHT Planning.
35 - What happens with improvement grants if my house is in the trust?
This may affect the amount of repairs or improvement grant you could obtain in the future. You could take the house out of the Trust to get the full Grant and then put it back in again but this would mean that you lose the accrued protection of the trust so far as the house is concerned and you would effectively be starting the trust process over again in that regard. You would require to pay 3rd party outlays such as government registration dues again but no further fee would be charged.
36 - Who gets my estate when I die?
Usually whoever you have left it to in your Will, will receive all of your estate. But the trustees are also guided by the Trust attendance notes, which state the reasons why you set up the trust. Upon your demise your Trustees will check the attendance notes carefully. They are not legally bound to follow the Will. For example you may have divided your estate between your three children. But your Trust attendance notes may state that one of your children has a shaky marriage and you do not want the son/daughter-in-law to inherit a chunk of your estate, under any circumstances. Your trustees will make checks to ensure your wishes are carried out. This may involve holding on to the son/daughters inheritance until the situation resolves itself.
37 – If I became divorced would a Family Protection Trust protect the home I own solely and hence prevent my spouse from getting half of its value?
Yes it can, providing you have good reasons for putting the house in trust other than denying your spouse his/her rights on divorce, and providing the trustees are acting in the best interest of the beneficiaries of the trust and not just doing what you tell them to do.
38 – Can I put my investment property into the trust?
If the property is not your Principal Private Residence then you would most likely suffer a capital gains tax charge when putting the property into the trust. Which may make the trust economically not worthwhile.
39 – Can I put my Park Home into the trust?
Park homes do not have title deeds hence unfortunately they cannot go into the trust.
40 - Why has the Will & Probate Practice teamed up with WW & J McClure in Scotland for an English trust?
After much research we have found that WW & J McClure provide an amazing level of service for a very competitive fee. Many English firms charge 2 or 3 times the fees charged by McClure. Even though McClure are a Scottish firm, they are fully authorised to carry out English legal work and have offices in England.
McClure were founded in 1853 and have been preparing Trusts for clients for over 160 years which is probably longer than any other legal firm. In the last 20 years they have specialised in setting up Trusts with the particular aim of protecting assets for probate and care cost purposes and have helped thousands of clients and their families in the process.
McClure therefore, have substantial experience in setting up Trusts and actually making them work. Many clients have gone through the whole procedure from setting up the Trust, transferring the property into the Trust, then going into care and thereafter dying with the Estate being paid out to the beneficiaries free of probate costs. McClure’s have, and will continue to, see the process through.
It is our opinion that few, if any, legal firms have more experience in using Trusts for care cost and probate purposes. McClure received High Street firm of the year 2017.
41 - Why would I not go directly to McClure, and bypass the Will & Probate Practice?
It’s actually substantially cheaper to set up an FPT through us. McClure’s prefer to outsource the fact-finding and initial set up phase, hence as associates they offer us very good deals.
42 - Who else uses McClure’s Family Protection Trusts?
Building Societies, Solicitors Clients, Solicitors Relatives, Independent Financial Advisors. Local Authority Councillors.
44 - What are the fees?
A single trust is £2,650 all-inclusive, for a couple (two trusts) it’s £3,650 all-inclusive.
Glossary of terms
We try to avoid using too much jargon but unfortunately some is unavoidable. The following explanations should help.
Trust – A Trust is a like a protective box that you place assets in. You do not then technically own the assets. They are held by the Trust for the benefit of the people named in the Trust, which includes you.
Settlor - This is the person who gives assets to the Trust (i.e. you). The Settlor has control over the Trustees and therefore, in practice, over the Trust itself.
Trustees – These are the people that the Settlor appoints to manage the Trust and to follow the rules of the Trust.
Trust Deed/Trust document – this is, in effect, the rule book relating to the Trust. It will be signed by the Settlor and then the Trustees will be duty bound to follow its instructions. It will ensure the right of the Settlor to continue to live in any property passed into the Trust and that any assets are passed to the relevant people when the Trust ends.
Executors – These are the people that you appoint in your Will to wind up your estate. Their job is made a lot easier if you have already passed your assets to the Trust as they have less to distribute.
Probate (Grant of Probate) – When you die owning assets of significant value (usually sums over £5,000) your executors (see above) have to gain the courts authority before they can distribute them. This comes in form of the Grant of Probate.
Lasting Power of Attorney – This is a separate legal document allowing you to appoint people, called Attorneys, to manage your financial and/or health and welfare affairs should you become unable to do this yourself. This will only be relevant to assets NOT passed by you to the Family Protection Trust since those assets will be handled by the Trustees.
Enduring Power of Attorney - Lasting Power of Attorney replaced Enduring Power of Attorney in October 2007. But Enduring Power of Attorney’s made before 2007 are still legally valid.
All information in this document is true and correct to the best of our knowledge at the time of writing. But you may be advised to seek independent financial advice before making decisions about your property.
The Will & Probate Practice is a trading name of The Will Practice & Associates Ltd.