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How to protect your children’s futures and provide for your partner

Jade Paine

27th June 2018

Many people want to ensure that their assets – their house, land, possessions etc. – are protected for their children and future generations after they die. At the same time, they want to ensure that their partner; civil partner or spouse is looked after for the rest of their lives. There are several ways in which a Will may assist to achieve this objective and two of the simplest ways of doing so are to include a Right of Occupation or a Life Interest Trust for the benefit of their surviving spouse or partner.

Rights of Occupation apply only to your property. Under a Right of Occupation your spouse or partner can to continue living at your property, but the capital value of your property is transferred to the beneficiaries named in your Will when your spouse or partner dies.

The second is Life Interest Trusts. These are similar to Rights of Occupation but can apply to any asset and not just property. Under a Life Interest Trust the survivor is paid the income the assets accrue and the capital value of the asset is protected and paid to the beneficiaries named in your Will upon the survivor’s death.

While your partner is alive:

If your Will contains either a Life Interest Trust or a Right of Occupation for the benefit of your spouse or civil partner then there will be no inheritance tax to pay on the value of the assets passing into the trust upon your death as spousal exemption applies. The value of the assets are instead treated as part of your spouse’s estate for inheritance tax purposes meaning they may have to pay inheritance tax when they die. Upon their death however, the asset passes to the beneficiaries cited in your Will.

However, if you are leaving a Right of Occupation or Life Interest Trust to a non-married/ civil partner then depending on the value of your estate inheritance tax may be payable on your death.

The advantages 

The advantage of Trusts such as these is their flexibility. If needed, Life Interest Trusts can be drafted so that capital can be paid to your partner if they need it. However, because the asset in the trust does not belong to them, its value should be disregarded in the event they get divorced or be declared bankrupt.

These trusts may also protect the trust assets from being taken into account by a Local Authority if the survivor applies for Local Authority Care. However, Local Authorities have wide reaching powers to void transactions they deem to be for the purpose of avoiding care home fees.

Furthermore, these Trusts may protect the assets for children from past relationships as the survivor is unable to change who the capital of the trust asset will pass to. The survivor will have the benefit of living in the asset or receiving the income from the asset but it will be the Will maker who decides what happens to those assets when the survivor has died.

Seek advice

While Life Interest Trusts can be flexible, they may not be right for every situation. It’s important to seek advice and make sure that the protection you put in place in your Will corresponds to your particular circumstances. 

Please talk to us before making a decision

Our dedicated Wills specialists are here to help and will spend time with you to understand how you would like your protection and provision requirements to work. Please call Jade Paine on 01273 384 041 or email us at j.paine@griffinsmith.co.uk


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