Property Protection Trust
Worried about Care home fees? Thinking of setting up a Property Protection Trust. Find out the facts about placing your property into Trust. Are you concerned over what may be seen as deliberate deprivation. Placing a property into trust without careful planning can be fraught with risk.
An estate cannot be distributed between heirs if the person who owns it is still alive. That makes sense. But what happens when the owner of the estate is missing, and could be dead, but there is no proof of their death? Is there something that can be done, or will the estate remain in limbo forever, unable to be inherited or sold?
Death in absentia means that someone is declared death despite gaining any direct proof of the person’s death. That means that no remains have been found, and no one has come forward with any evidence to proof that the estate owner is actually dead (or alive).
In order to be declared dead in absentia, there must be overwhelming support for the theory that the person is actually dead. For example, they may have been travelling in a plane that crashed, and everyone on board died. Their body may not have been recovered, but the theory would be that they had died. In order to pass the estate on to any heirs, there must be a court order to declare death in absentia; this order directs a doctor to complete a death certificate.
In most countries, the individual must have been missing for seven years before anything can be done regarding their estate. If, however, the estate is a significant one, it may be that a court will request a longer time to enable every avenue of investigation to be completed. The problems arising when someone who has been declared dead actually returns are huge, and cause major issues for everyone involved, not least the person whose estate has been divvied out amongst his or her heirs!
We have probably all heard the term ‘power of attorney’, but it doesn’t follow that we know what it means. It’s all over the TV, we find it in novels, it’s in films as a great plot point, but what does it really mean, and when and why might you want to use it?
A power of attorney is a document. That’s the first thing to remember, and something that is often misunderstood as people tend to imagine that it is a particular person instead. This document allows you to appoint someone (which is where the confusion lies) to look after your money, property, assets, even to make decisions on your behalf regarding your health, if you are unable to do so. If this sounds too vague or too much, you can enact a ‘special power of attorney’ which is used only in very specific circumstances – circumstances that you dictate.
As well as these two main power of attorney types, you can also use a health care power of attorney which means that your attorney in fact can deal with health decisions on your behalf.
Some of the things that a general power of attorney allows others to do on your behalf include selling property, opening safe deposit boxes, settle claims, file tax returns, buy or sell stocks, and so on.
But it is the health power of attorney that most people think of when considering this. It’s not something that everyone will be happy to do as there is a lot of responsibility – so make sure you speak to the person you want to have the job before you start any paperwork. It’s important that there are no problems if you need to enact the power of attorney. The health power of attorney will relate to ‘life sustaining measures’ such as life support or medications. It might even relate to consent for operations to be carried out. Someone will need to make these decisions if you are unable to – if, for example, you are in a coma, are badly injured, or have limited mental capacity. It is best to discuss your wishes with your attorney in fact so that, in the event that something should happen, they can follow what you wanted.
Writing a will is a job that not many people relish. But, once it’s done, it’s done. Right? Not necessarily. According to studies, the average useful lifespan of a will is around eight years. What does that mean? It means that, in many cases, within eight years of you writing your will something will have happened to cause you to need to change it. It won’t be the case with everyone, and a large number of people really can simply write their will and then forget all about it (apart from letting loved ones know where it’s kept, of course). However, wills do sometimes need to be updated, and if they aren’t then there can be problems when it comes to probate and executing the will.
When should you update your will?
If something major happens in your life, then think how that will impact your will. Marriage is one of these major life events, as is divorce. If either of these things occur after you have initially written your will, then you will most likely need to update it to include or remove people from it.
Children are another reason to update your will. It is likely that you will want them to inherit some or all of your estate, so they need to be mentioned in your will. Guardians are also an important aspect to include if your children are under 18. And if they turn 18 after you have written the will then the guardians should be removed as they will not be required.
The death of anyone who is mentioned in your will will also mean that it needs updating, and the same is true if you fall out with anyone who was originally meant to inherit. If you change your mind, change your will, otherwise the people you don’t want to inherit will do so anyway.
A recent survey carried out by the Cavell Nurses’ Trust showed that over two thirds of nursing staff don’t have a will. The charity supports nurses who are in financial difficulties or who are going through personal hardships, and the organisers of the survey were shocked to find that such a high number of nurses had not yet – or didn’t intend to – write their will.
Within the general population of the UK, the number of those who don’t have a will is at 53 percent compared to 64 percent of nurses.
The Cavell Nurses’ Trust intends to raise awareness of this facts through information in May, which is Make A Will month. The charity’s chair, Simon Knighton, said that he understood how busy a nurse’s life can be, and how working around the very ill, and seeing death on a regular basis, can put people off from wanting to think about such things when they finally do have some time off. However, he also understands that without a will it is the family left behind who will suffer, and so they are extremely important.
Some will writing businesses offer a discount for those in nursing, and it is always worth checking out beforehand.
In 2004, a woman named Melita Jackson left £486,000 to animal charities. Her daughter, Heather Ilott, took the will to court in order to get a share of this estate – the will did not initially feature her at all. The pair had fallen out after Ms Ilott had eloped at the age of 17. She went on to have a long and happy relationship, and five children with her husband. But Ms Jackson could never forgive her daughter for what she had done.
Eventually, after many months, the Court of Appeal agreed that Ms Ilott should receive one third of the estate.
What does this mean in terms in will writing and inheritance? The experts are predicting that this could mean that people will not be able to disinherit their children unless they give a detailed reason why. Simply missing them out of the will without any additional documentation to explain why could mean that, if the children take the will to court, they will be given part of the estate. It will make it much easier for those who have been disinherited to challenge the wills of their parents.
The judge in this case ruled that Ms Ilott should have one third of the estate as her mother had not left her ‘reasonable provision’.
John Gimbert has been found guilty of stealing a house. Not in the sense that you might be thinking, but steal a house he has still done. And not just a house – the 64 year old retired policeman – along with his son, David – has also been convicted of stealing £200,000 from his disabled cousin.
It is said that Gimbert abused the position of trust that had been afforded to him after being made power of attorney over his cousin’s estate. He was tasked with selling the disabled woman’s house, and he did so – but he sold it at a vastly reduced rate, and he sold it to his eldest son. He also spent £30,000 on vehicles, and gave his other children large cash gifts to use as deposits to buy homes.
He managed to get away with this as his cousin, Miss Trim, has no concept of money and did not understand that she had been duped. Her disability means she has severe learning difficulties, and the mind of a child.
Along with the deception, it is argued that Miss Trim did not have the mental capacity to sign the documents allowing Mr Gimbert to become her power of attorney.
People love to collect things. It seems to be a part of human nature, and many of us love to have a small collection of interesting objects. It could be anything from stamps to postcards to action figures… Whatever catches your eye really. But for most of us, our collections are little more than something to do. Something of interest. And if we do decide to include them in our will, it is not usually for the beneficiaries to gain any monetary value from them.
But this is not always the case.
Bob Postal collected toy soldiers. His collection spanned 30 years, and he had more than 10,000 when he died in September 2015.
He left the collection to his wife, Carole, who, although fond of the items because they had been Bob’s, and because they had always been a part of their life together, did not know what to do with them. It is likely that she would simply have left them in their boxes and cabinets if a friend had not phoned her up to tell her about a news progamme she had just seen.
The programme had been called ‘Strange Inheritance’, and it was all about a man who left a collection of toy soldiers, much like Bob Postal’s, to his family. The family wanted to sell them which, as it turned out, would be a good idea because they were worth hundreds of thousands of dollars.
Carole Postal wrote to the programme herself to tell them about her collection, and she was featured on an episode entitled ‘Toy Soldier Story 2’. She told viewers that when she and Bob had first got married he had insisted that they buy an apartment with two bedrooms rather than the one they needed. When Carole asked why, Bob told her about his toy soldier collection. Carole said she never minded as long as ‘the guys’ (as Bob called them) remained in the soldier room.
Postal’s collection has been valued at over $300,000, and experts say it is one of the biggest collections in the world. But Carole does not want to sell them, and has placed half of the collection in the New York Historical Society. The other half is in a children’s museum in Rochester, New York.
The majority of people in the UK do not have a will. And while there are many reasons behind this, one reason that tends to stand out is that people often think that writing a will is a difficult, laborious job. So they put it off. And put it off. And sometimes that putting off can mean that it becomes too late to write one at all.
Firstly, there are low cost, online options that will save you money. These options are simple to complete – just follow the online instructions and work your way through the options given to you. By the end – around half an hour at the most – you will have a will written than just needs to be printed off and signed by you and your witnesses. In some cases, the will is checked by a professional before you print it. For very little work, you have a complete, valid (once signed) will that will save any problems after you die.
If you have a complicated estate or family situation, then online wills may not be the best option for you – but it still doesn’t need to be a difficult thing to do. If you need to have your will drawn up by a professional will writer or solicitor, then booking an appointment to go and see one is not a hard task to accomplish, and the meeting will not be difficult either. Professional will writers will know exactly the right questions to ask when it comes to your will to ensure that everything is covered. All you need to do is answer the questions and the professional will do the rest.
If you have any queries about writing your will, or you want us to organise it for you, please don’t hesitate to get in touch. Our expert team will be glad to help.
It is unlikely that you will be asked any questions about whether a property is insured or not when you apply for probate. It is not a requirement for applying for probate or receiving the grant of probate; it won’t stop you doing what you need to do as an executor.
However, making sure that the right insurance is in place is actually a rather important thing to do. Remember that any home insurance that was being paid on the property by the deceased is no longer valid, even if the payments are still being made through direct debit or similar. If the person under whose name the insurance is paid for is dead, no payments will be made if anyone tried to claim on it. In essence, therefore, until probate is complete and the house can be sold or passed on to the beneficiaries, it will be uninsured unless something is done about it.
Those who are responsible for the estate should therefore arrange for insurance on it for the probate period. This is especially important if the property is to be sold – in order to get the best price, the upkeep should be good and the house should be in good repair. If anything where to happen, especially while the property is empty, then the insurance would be able to make it good again for the sale. Insurance will also be able to fix any burst water pipes and general wear and tear. The heating will, in an empty house, be turned off. This will save money. But it can also lead to pipes freezing and bursting and therefore insurance with additional emergency works cover is often useful. It will be better to have the insurance dealing with these problems rather than the beneficiary who may not be able to afford large repairs and will have to sell the house at less than it is worth. A vacant house should be inspected regularly to ensure that everything is as it should be.
There is a special insurance known as ‘unoccupied property insurance’ which is designed for exactly this situation.