There are numerous reasons why a person might legitimately want to transfer his or her property to a family member or into an Asset Protection Trust otherwise known as a Family Trust.
The largest asset owned in most instances is the family home. Often this is held by both parties as joint tenants. In order to ensure that each spouse has sufficient sole assets to satisfy the Nil Rate Band Trust it may be necessary to split the joint tenancy of the property. Each spouse would then own the property jointly as tenants in common. Although the property would still be owned jointly with your spouse, the significant difference is that on the death of the first spouse the 50% share owned by them can then be used towards satisfying the Nil Rate Band Discretionary Trusts.
By specialist wording within the trust the surviving spouse can continue to own the whole property but the value of deceased’s share in the property will be out of the surviving spouse’s estate. Although Stamp Duty Land Tax may be payable at the time of the deceased’s death it will only be a fraction of the potential Inheritance Tax (IHT) liability. The assets within such a trust arrangement will not be regarded as the spouses capital should he or she require Long Term Care.
Transferring property to family members
Points to consider in relation to a transfer of property to family members:
- The person transferring the property will have a lack of security unless there is a deed of trust setting out rights of residence and rights to use the proceeds of sale to acquire another property etc.
- It must be understood that if a person is no longer the owner of the property he/she would no longer have full control over the proceeds of sale.
- It is essential that the beneficiaries of the gift execute a Will to make provision if they die before the donor.
- If following completion the people to whom the property has been transferred get into financial difficulty the property would be their asset and could be attacked by creditors and also taken into account in a bankruptcy.
- If any of the people to whom the property is transferred are involved in matrimonial difficulties the share in the property would be an asset taken into account in any divorce settlement.
- The transfer of the property does not reduce the value of the estate for Inheritance Tax purposes while the donor continues to reside at the property because of the reservation of benefit rules.
- The private residence exemption does not extend to the persons to whom the property is being transferred unless they are living in the property. This generally means that there would be a Capital Gains Tax implication in relation to any future sale.
Putting property into a Family Trust (Asset Protection Trust)
Transferring your property into an asset protection trust also known as a family trust gives more security. Setting up a Family Trust involves transferring the family home into a lifetime discretionary settlement. The trust is usually structured so as to provide the person(s) transferring the property a right of occupation.
By transferring a property into a trust matters are greatly simplified on death.
When a property is in a trust difficulties in dealing with the property are avoided. While it is always prudent to have a Lasting Power of Attorney this expense can be avoided if the property is the only asset of the donor. If there is no Lasting Power of Attorney in place the need to involve the Court of Protection can often be avoided. Involvement of the Court of Protection is expensive, time consuming and for most people a stressful experience.
The trustees of the Family Trust, in most cases, are the person(s) transferring the property and two members of the family. The family members who are to ultimately benefit from the sale proceeds of the property are named in the Trust Deed as beneficiaries. By transferring the property into a Family Trust it means that the property no longer belongs to the original owners for the purposes of any financial assessments under current legislation.
It is important that a person(s) transferring the property should understand that if the property is in trust, the trustees would be in control of the trust property. The person(s) transferring the property would have a right of residence. If one or more of the trustees/beneficiaries died, got into financial difficulties or divorced, this would not affect the running of the trust as usually these people do not have an absolute interest in the property until funds are distributed (usually, when the property is sold).
Points to Note:
It is important that it is understood that disposal of a property whether by way of transfer to family members or by way of transfer into a Family Trust does not avoid Inheritance Tax.
If a person(s) is intending to transfer a property purely to deprive them of assets in order to avoid paying any type of fees, for example nursing home fees then the transfer may not be effective. The burden of proof in the context of why a property is being transferred rests with the Donor during the first six months and thereafter lies with the Local Authority but there is no time limit. It is a popular misconception that there is a limit of five or seven years after which time no questions would be raised. In this context it is worth bearing in mind that we charge £975 plus VAT to carry out the legal work in transferring the property into a trust. In addition there are disbursements that vary in each case but rarely do the total costs exceed £1,200.
There are, of course, a number of reasons why a person might legitimately transfer his property:–
- Natural love and affection for children and a wish to preserve a property for the ultimate benefit of children and issue.
- Concern about the responsibility and cost of repairs and improvements in the future.
- Emotionally attached to the property e.g. self build can ensure is retained for the future.
- Property has been the family home for a number of years and your wish to retain it in the family so it might be available for future occupation of family member.
- Transfer in life simplifies procedures and may save the expense of obtaining a Grant of Representation on death.
- Transfer in life can avoid difficulties if there is a loss of capacity by the owner of the property to deal with his or her affairs.
We have prepared this as general guidance, it does not purport to provide legal advice. If you would like to discuss the points raised in this note in the context of your actual circumstances, please contact Amanda McNabola on 0191 5682050 email email@example.com