This article was last updated on 1 March 2021.
A Life interest trust offers a method of safeguarding your property and other financial assets. In this article we will explain:
This article will cover the intricacies of life interest trust funds and explain how a life interest can be beneficial, who they are best suited to and why professional assistance matters when you decide to set one up.
If you are looking to use a trust to avoid care fees then we recommend that you watch this short video.
A flexible life interest trust enables you to allocate a beneficiary (usually yourself and/or a spouse or family member) who then has the legal right to receive income from or use a property named in the trust. Lifetime trusts are also known as ‘interest in possession’ trusts.
A life interest trust is a type of trust that can be included in your will. It allows you to specify who owns the rights to your family home – which can protect you and family members should you need care in the future. It’s also a good way to preserve your assets and many people set them up for Inheritance Tax purposes.
Lifetime trusts are particularly popular because they are very flexible compared with alternative options. In a situation where a couple is married, other similar trusts specify that all assets are passed to the surviving spouse automatically.
Lifetime trusts allows for additional assets to be passed to other family members and beneficiaries.
The trust can be set up in advance but is in fact created upon the death of the first spouse. The life interest trust then pays an income to the survivor, the life tenant, for the duration of their lifetime. When the life tenant eventually pass away the trust is then transferred to their beneficiaries – usually children – with no Inheritance Tax to pay.
Funds contained within the trust cannot usually be considered during a financial assessment should the survivor require care in the future. However, you should always check this point when you set one up.
Lots of legal terms will be used by solicitors. Here are the main ones you are likely to come across:
The person who made the trust.
The trustee has the legal ownership of the trust property, so often get to make decisions about how capital is allocated. You can have more than one trustee, so trustees will have to make decisions together.
The beneficiary or beneficiaries are ultimately entitled to benefit from the full value of the property. When the trust is dissolved, the beneficiaries will bet the full benefit of the trust
A life tenant gets to live in the property and may get income from it, however they are not entitled to the ultimate benefit, i.e. the value of the property. Life tenant’s entitlement therefore only continues during their lifetime.
This type of trust is best suited to couples – married or in civil partnership – who:
As with all financial products and trusts, there are advantage and disadvantages attached to a life interest trust.
There are also potential disadvantages – depending on your personal situation.
Here is a short video that provides an example of a life interest trust.
If the value of your estate is worth less than £23,250, the Local Authority will help with care fees. However, if you have more than this, you have to pay for your own care. Money in a trust is often not considered as coming within your estate, so it does not come into the assessment.
However, you have to be careful with this, as you cannot create a trust with the purpose of avoiding care fees, as this is called deprivation of assets, and can mean your estate is assessed anyway. Using solicitors can help you avoid this problem.
This is when the surviving spouse remarries, and possibly have children. When the first spouse dies, all of their estate will go onto their partner.
When the surviving spouse dies, all of the first spouses assets will then be passed onto their new spouse and children they had with this partner. Therefore, the children from the first marriage lose out. Setting up a trust helps you avoid this problem. The surviving spouse can keep living in the family home, but then when they die, the value of the property will go to the children.
Nothing stops the life tenant from selling the house after the death of their spouse, and use the capital to help them live elsewhere. Surplus funds will be held by the trustees, and ultimately the beneficiaries are entitled to receive the capital. However, if the life tenant is entitled to receive the income as well as being entitled to live in the property, they may be entitled to the value generated from selling the house too. However this is limited to the income, not the actual property value.
If your life tenant is the surviving spouse, then the trust property is seen as a gift and there are no tax consequences because of the spousal exemption. After the death of the surviving spouse, the transferable nil rate band can be used, so if the value of the property is below this, there might not be tax.
Flexible life trusts are offered through certain financial trust providers and must be made by a solicitor to be effective.
When choosing to opt for a trust fund it’s important to first make sure you have all the information and some sound legal and financial advice. This ensures that you are choosing the best product for you – a trust that fits your circumstances.
First, you’ll need to appoint a solicitor who is authorised and regulated by the SRA to advise you on the options available and create a watertight trust structure on your behalf. If you don’t have a solicitor that you know that specialises in this, we can help you.
You may like to do some research online first and ask for impartial testimonials from family and friends who have been in a similar situation. Most legal professionals offer a trust fund set up at the same time as will creation or review for a fixed fee.
You should choose someone you trust, as they will have responsibility for making sure the beneficiaries get the capital value, and the survivor, also called the life tenant, gets an income from the trust. You can appoint professional trustees, from solicitors or your bank, as they will be more independent.
Setting up a life interest trust can be a very complex process. The details will depend on your specific situation and wishes. Solicitors have to set up the trust for it to be legally valid.
For this reason, it’s very important to enlist professional advice from a reputable solicitor and/or later life financial advisor who specialises in trust funds. You may also like to consult family members if you wish to help you to make your decision.
If you would like our help in putting you in touch with a solicitor that has the legal skills to set up a trust will for you, please leave your details below. We will then arrange for a legal specialist to give you a call.
Before you a trust is registered, it is required that you and your partner own your house as tenants in common, rather than joint tenants. Being tenants in common means you divide up the ownership of the property so it is half and half, rather than having ownership of the whole thing jointly.
Therefore you can pass on your half of the property to the life tenant, rather than it going automatically to the other joint owner. A solicitor will need to make a notice of severance to change your ownership from joint tenants to tenants in common. This will be registered with the land registry.
Some trusts will terminate automatically, such as if someones dies or a beneficiary remarries. Also, often the trustees are given the power to change the life tenant’s income from the trust or even to set up new trusts and sell assets. Otherwise, the arrangement is a legal document, so you need solicitors to help terminate it. You should get legal advice before this as there could be unexpected tax consequences.
You are not limited to setting up a life interest trust, there a range of different trusts that you can use, and they are all worth exploring so that you can identify which one is likely to be the best one for your circumstances. These include:
An asset protection trust is a tool for managing your estate to make sure your assets go where you want them to after you die. It is a that trust is set up during your lifetime and put house in trust, and assets in the trust are distributed quickly to the beneficiaries once you pass away. You retain a life interest in property .
A family protection trust gives you a legal option where you have full access to the assets in the trust while you are alive, but you get to choose who will inherit from the trust fund.
Inheritance tax planning trusts can set up a trust to help you manage what will happen to your property after your death.
Not only can a trust help reduce the inheritance tax you and your beneficiaries will pay, but they are also a useful tool for asset preservation and to give you flexibility in how you manage your finances. However, it is worth getting advice on setting up a trust.
A home protection trust protects your rights to reside in your family home. Having a trust makes sure that the property passes on to your beneficiaries after your death.
You could also consider giving your property as a gift to a person during your lifetime, instead of setting up a trust. This can have tax benefits if it is done enough years before your death, as it may mean your estate comes below the nil rate band. However they must be someone you trust, as one you given them the property, they can do whatever they please, including if they want to sell the property you wanted the life tenant to live in.
We offer a free consultation to discuss your circumstances and see what options you have:
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