Protecting your Assets

Many clients consult us in order to obtain advice on paying for residential care.

The majority feel that they have worked hard and want to pass on their property to their children. As a result, most clients want to protect their matrimonial home for the benefit of their children and grandchildren and mitigate against exposure to care fees assessment by the Local Authority.

In Scotland if one of a couple were to pass away and the other require residential care, then the Local Authority have the right to force a sale of the property in order to take payment for your care, if your savings were depleted. The same applies if one of you were to be in residential care and the other then passed away.

Unlike England there is no cap on the amount of care fees you pay in Scotland. The current guidelines state that you pay for your care until you are left with just £18,000.

The basic message is that 100% ownership of a property renders it completely exposed for potential care fees. We therefore want to avoid clients having a Will which leaves everything, including property to the surviving spouse.

Our solution lies with the title deeds. More often than not, title deeds usually contain a clause which says that on the first death the property automatically vests in the survivor in its entirety. This needs to be removed and replaced with wording which narrates that instead, you each own a 50% share of the property. Our advice would therefore be that we amend your title deeds to this effect by way of an Evacuation of the Survivorship Destination. Simultaneously, you need to have a fresh Will prepared stating that your 50% share of the property is to go to your children and/or grandchildren.

The effect of this will be that at least half of the property will be protected at any one time against care fees, as if you pass away first then your beneficiaries will own half of the property and they will refuse to sell their share. By association the Local Authority cannot sell a half share.

Please call us for further advice on 01383 431 101 or email lornabrown@caritaslegal.co.uk

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