A Property Trust protects each person's share of their property, whilst ensuring that their spouse / partner is able to continue living in the property.  On their spouse / partner's death, their share is then passed to whoever they choose to specifiy (the end beneficiaries).

The Trust will ensure, for example, that your children receive your share of the property, even if your spouse were to remarry, or go into a care home.

The share of the house belonging to the first to die is protected within the Trust, and protected for the end beneficiaries, even if the surviving spouse is liable for care home fees, which can then only be taken from their own share of the property value.

Children can often be cut out of a Will as a result of a surviving parent, or step-parent remarrying (this is known as Sideways Disinheritance).  A surviving spouse may choose to change their Will.   If they remarry without making a new Will, any existing Will would automatically revoked.  Marriage revokes any former Will.  A new spouse then becomes the primary beneficiary, which means they could inherit everything.  If a new Will is made, to include the children as Beneficiaries, the new spouse can still make a claim against the Estate, or the assets of the first to die could be taken as a result of the survivor's divorce.

The Property Trust is especially popular and beneficial for a couple who have children from previous relationships and marriages.  

Property Trusts provide a Life Interest to a survivor, which means the surviving partner has a right to, and can continue living in the home when the first spouse has passed away.  This is especially, therefore, beneficial in situations where one spouse or partner owns the property solely, but wants the surviving spouse or partner to have the right to live in the property, whilst retaining the whole property within their own Estate, and therefore passed to their chosen beneficiaries, for example their own children.

Even if there are no children from previous relationships, a Property Trust will still be effective in preventing future sideways disinheritance or loss of inheritance as a result of care home fees.

It is worth noting that in all cases mentioned above, the surviving occupant does not necessarily need to be given a Life Interest, but instead, could for instance be given the right to live in the property for a certain number of years, or until remarriage.


'How can I ensure my house goes to my children, not my step-children?'

Ask an Expert: We look at how parents can create a trust to ensure their property is passed to their chosen beneficiaries

blended family step-childrenThousands of UK households are now made up of blended families, raising questions about who will inherit assets. Photo: Alamy

I own a property worth £700,000 which was my marital home from my first marriage. I am the sole person named on the deeds.

I remarried five years ago. I have made my will stating that my second husband will get the house when I die. Will my husband be liable to pay inheritance tax?

And how can I ensure that when he dies the property goes to my children from my first marriage and not to my step-children?

DB, via email

Firstly, your husband will have no inheritance tax to pay because spouses can pass assets to each other without incurring a tax charge.

The more difficult question is how to ensure that on your husband’s death the property passes only to your children, and not to his.

You have two options, according to Hugo Smith, of law firm Bircham Dyson Bell. "You could simply rely on him making a will which leaves the property to your children, but with the risk that he would be free at any time (either during your lifetime or after your death) to alter his will," he said.

"A better alternative would be to amend your will so that rather than leaving the house outright to him, it passes into a trust for your husband’s benefit."

This would mean that if your husband survived you he would be entitled to live in the house for the rest of his life.

The terms of the trust would then set out that on your husband’s death, the property would pass to your children, and would not pass according to the terms of his will.

"The benefit of having a trust is that it enables you to set out in your own will what is to happen to the house following your husband’s death," Mr Smith said.

But be aware that your step-children could still potentially bring a claim for the house.

"They could only bring a claim on your death, however, if they could show that they were financially dependent upon you and that your will failed to make reasonable financial provision for their maintenance," Mr Smith said.

"If your husband survived you, they could bring a claim against his estate, but this would only include the house if he owned it himself. If you had left the property in trust for him, it would be much harder for a claim to succeed simply because the property would not be part of his estate."

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