Posted on 11.8.14 by Michael Smoult
We have seen an influx of clients enquiring about asset protection in initial meetings. Clients are eager to ensure that their home passes to their chosen individuals for a number of reasons but principally to ensure that their assets are ready to be administered straight after their death and to plan for later life. Trusts can assist in protecting beneficiaries from divorce or insolvency and planning for the future.
The principal of transferring your assets to trust is that the value of the client’s home is transferred into a trust so that it is then placed under the control of trustees for the benefit of the client’s beneficiaries. The trustees are individuals who are trusted by the clients. The client will usually be a trustee also. The trustees then become responsible for the home on behalf of the beneficiaries. In the trust there is a list of beneficiaries chosen by the client. There will also be a confidential letter of wishes which guides the trustees as to how they would like the trustees to make decisions with the property. This letter is non –binding although very persuasive.
E.g. Mr & Mrs Johnson are 60 and married with two children and grandchildren. Mr & Mrs Johnson want their children to equally inherit and if they do not survive them then their grandchildren should inherit their parent’s share. They prepare and execute a trust transferring the value of the family home to a trust. Mrs Johnson suddenly and sadly passes away. A few years later, Mr Johnson re-marries.
As the Trustees are in control of the property, and know of Mr & Mrs Johnson’s wishes for the trust the property will be held by them to decide what to do with the property. It would be up to the trustees to decide what they do based on the content of the letter of wishes. However, Mr & Mrs Johnson and their children would have known that the remarriage will not impact their children’s inheritance.
The advice in this area is very complex and although will writers and various other limited companies offer this service it is imperative that anyone thinking about transferring any assets to a trust seeks the proper legal advice from a fully trained and competent solicitor. If you do not receive the proper advice and the trust is not set up properly or if the correct advice is not given then the client will not be fully informed of the legalities of the trust.