A protective property trust, property protection trust, or life interest trust is a type of will that is designed specifically to stop your home from being sold to pay for any long term care home fees that you may need to pay. If the property is owned by two people, then after one of the couple dies, their share of the property passes into the trust. It means that the survivor is then able to benefit from the entire property – and upon their death the trust passes to other people, most often the children.
A protective property trust is ideal for those who are worried about the cost of long term care when they are older meaning that they have to sell their home, even though they would prefer for it to go to their children or other specified people.
In order for this to work, the family home needs to be held in joint names, as tenants in common. Then, after the death of the first owner, the title deeds will need to be transferred into the joint names of the surviving partner, and the trustees (who can also be your executors). If required, the surviving spouse can also be a trustee.
No matter who the trustees are, they cannot order the remaining spouse to leave the property – it is theirs for life. If that person needs to move into residential care later on, the share of the property in trust is not seen as an asset, and therefore it can’t be taken into consideration when looking at care home fees. However, the share that is owned by the spouse living in the house is seen as an asset. Houses cannot be split in half to sell, so it is unlikely that it will be used to pay for a care home.
If the surviving spouse decides to move home at any time, this is perfectly possible, and arrangements can be made for a trust to be set up on the new home instead.
It seems that we really are living for longer these days, at least in the UK. In 2015, a record number of people, known as centenarians, turned 100, giving the country a total of 14,570 people are who aged 100 or older.
The truly interesting fact about these numbers is that the 14,570 figure of today is actually quadruple the figure of 20 years ago – that’s an astonishing number of people living into then centenarian years. And in just the last decade, the figure has risen by 65 percent, which equates to 5, 720.
When it comes to those reaching the age of 105 or more, the figures are also rising. In 2015, 850 people hit the 105-year milestone. In 1985, the figure was just 130. It’s still a lot of people reaching a very respectable age, but the increase has certainly been dramatic.
Further breakdowns of the figures show that the majority of these people are women, who are still outliving men.
The Office for National Statistics has calculated that life expectancy has increased by 13 weeks every year since 1982 for men, and 9.5 weeks a year for women. And currently, the life expectancy of those who were born between 2013 and 2015 is 79 for males and 82 for females.
With so many older people now living for longer, the temptation could be to leave writing your will to another time, at a later date. After all, life expectancy is increasing, so why do it now?
But these are just statistics, and everyone is different. There is no way to calculate any single person’s lifetime, which means putting off writing your will could be a big mistake.
Sometimes, a will will need to be destroyed. They are such important documents, and can make such a difference to someone’s life and legacy, that if you decide to amend or completely change yours for any reason, then ideally the original version (and all other copies, come to that) should be destroyed. It has to literally be erased from the world, just in case it causes any confusion or upset later down the line.
However, destroying your will is not simply a case of ripping it up and forgetting about it. If you want to destroy a will, you need to do so in such a way that it is obvious you meant to do it. There has to be intention. A scorch mark or a few small rips is not going to make the will invalid, whereas burning the thing entirely, or ripping it into tiny pieces will. And this is also the reason – apart from confusion – that any copies should also be destroyed. If copies remain after the original has been destroyed, it could look as though the destruction was accidental.
If you want to destroy your will but a physical disability (for example) is preventing you from doing so, you will need to find someone else to destroy it on your behalf. However, this must be done in your presence.
Of course, accidents happen, and sometimes wills are destroyed by mistake. In this situation, just because the piece of paper that the will is written on is gone, that doesn’t mean that the intention behind what it used to say has gone with it. It is most likely that you will still want to leave the same items to the same people. You wishes will not have changed. In this case, it is best just to make a new will. It will be identical to the old one, and this is where having copies will be extremely useful!
Although in some states in the USA, and in other countries over the world, a verbal will is valid, in the UK it is not – one of the main requirements for a will here is that it must be written down. But what about changes to a will after the original has been made? Can they be verbal?
Firstly, it is important to keep your will up to date – circumstances will change, after all, and decisions that have once been made may need to be amended. Your will should always be as up to date as possible. If major changes need to be made then a brand new will may have to be made, but if the change is only a small one then it might be possible to simply add a codicil. It is best to speak to your solicitor about this to ensure that you make the right choice.
But what about verbal alterations?
If we look at the law, then technically a verbal alteration to a will is legal. However, in reality these are almost impossible to enforce. There must be at least one witness who has nothing to gain by the will, but even then it should be expected that the change will be questioned intensely, as perhaps it should be. After all, memories are unreliable, and if the witness isn’t completely sure of what they heard, there could easily be a challenge made. Even if they are sure, others might still want to launch a challenge!
For ultimate peace of mind, making written alterations to a will is the best things to do if at all possible. This will ensure that your wishes are carried out exactly as you want them to be, and that no one will be able to challenge your requests and bequests.
The answer to the question about whether or not you would still owe money on your mortgage if you were to die is a personal one, but one that should be considered. If the answer is that your mortgage isn’t just about to be paid off, then you may have to assume that there will be money left to pay – because, as uncomfortable as it may be to think about, anyone could die at any time. And a mortgage is most likely the biggest debt you’ll ever have – amounting to hundreds of thousands of pounds. It can feel quite overwhelming when you think about it.
So what would happen to your outstanding mortgage if you were to die before it was paid in full?
The answer lies firstly in whether it is a joint or single mortgage. If it is a joint mortgage, then whoever is named along with the deceased on the deeds and mortgage details is the person who will be responsible for paying the balance of the mortgage. They won’t have to do this all at once (unless they choose to), but instead can take over the monthly repayments and continue to pay the mortgage as usual. Of course, if that person has no income, or cannot make the repayments on a single income now that their partner or spouse has died, it can prove problematic. This is why having adequate life insurance which would cover the balance of your mortgage is so important.
If the mortgage was only in the name of the deceased, then the terms will most likely say that the balance must be repaid upon that person’s death. Most estates aren’t rich enough to cover that mortgage repayment, and this is why the house will, in this situation, need to be sold. Any profit made from the house sale can be put back into the deceased’s estate. If there is a shortfall most mortgage lenders will close down the account with whatever can be made from the house – although this is not always the case and should be checked out before assumptions are made.
At the beginning of the millennium in the year 2000, around 47 percent of elderly people had written a living will. That’s a large number by anyone’s standards (particularly when compared to the general population who have written wills), but just 10 years later, that fairly healthy (in relative terms) figure had rocketed to over 70 percent. What had caused the sudden need for the elderly to write living wills?
There are a number of different suggestions.
In a living will the testator’s wishes regarding their medical treatment can be noted and referred to in the event that they are unable to speak for themselves for any reason. It is the best way to ensure that, should the worst happen, you are taken care of as you want to be. If the will writer were to suffer an illness or accident that leaves them in a permanently unconscious or vegetative state, they can choose what happens to them, and whether any ‘heroic measures’ are used to help them.
One reason that is suggested for the sudden and large rise in living wills being made is that the majority of people would rather end their lives in a hospice or at home than in a hospital – palliative care is the preferred option to medical intervention according to recent surveys. If a life is going to end, comfort and dignity are what is required, not lots of invasive procedures and medication. Having a living will means that you are more likely to get exactly what you want rather than what the hospital thinks should happen.
An upside of this is that society is becoming more and more open to discussing death and dying with friends and family, making it less of a taboo subject. Hopefully the advantage of this happening is that younger people will begin to make their wills earlier, which will mean that probate disputes and dying intestate happen less and less.
The High Court recently heard a case regarding a man’s will. Neighbours who had been expecting to inherit his house – he had told them as much – found that the man’s will had changed, and this prompted them to take the matter to court because they were convinced that he had been bullied into making a new will.
Robert Warke died in 2014, and instead of leaving his property to his neighbours William and Maureen Watton, Mr Warke’s nephew, Hugh Crawford, was the beneficiary. But the neighbours alleged that the nephew had told Mr Warke that unless he left him the house, he would have his dog put to sleep when he died (rather than look after it, presumably).
Not only did Mr Crawford inherit the house, but also all of the contents and the dog in question. However, the will – which was drawn up just a week before Robert Warke died – did include a £10,000 bequest to Mr and Mrs Watton.
But there was a previous will, dated March 2013, which left the property and dogs to the Wattons. And this is what prompted the neighbours to take the matter further. They claimed that Mr Warke was coerced into making a new will under duress due to the bullying nature of his nephew. They also suggest that Mr Warke did not have the mental capacity to make these changes legally.
Since the new will was executed while the Wattons were on holiday, they are convinced that something untoward went on.
The judge, however, could find no evidence of any wrong-doing. And the alleged threat to put the dogs down could not be substantiated. There were no documents to support the claims, and the judge determined that this was, most likely, a case of previous beneficiaries becoming upset that they were no longer part of the deceased’s will.
Making a will is an important thing to do. Once it’s finished, you can put it away safely and forget about it – you can, in other words, get on with the important business of living, with the peace of mind that your family and loved ones (and your possessions, money, and property) will be looked after when you die.
But there is more than one type of will, and it is essential that you choose the right one when it comes to writing yours. All wills do the same thing; they all set out in writing what you want to happen to your assets, and who you would like to deal with them. However, that doesn’t mean that you can simply pick any type of will and be done with it. They all have slightly different meanings and consequences.
The single will is the one that most people are familiar with. It is the list of instructions from one person regarding their estate. Not only is it the most widely used type of will, but it is also the simplest. There is another, similar will, however, that you may want to consider instead of the single will. This is the mirror will, and is useful for couples. The mirror will is for couples (either married, in a civil partnership, or unmarried) who have the same ideas of what they want to happen to their estate. It means that the two wills can mirror one another, and it is often cheaper to do this than to write two single wills.
Next is the property trust will. This is for those who want to protect the value of their property. This kind of will keeps the property safe for loved ones further down the line. It won’t be able to be sold to cover care fees for the surviving partner, for example. Another type of will that protects property is the flexible interest trust will. However, these wills also protect the testator’s savings and investments. The wills are flexible (as the name suggests) which means that some beneficiaries are able to receive their inheritance straight away, and others can have their put into a trust for a later date. This is a good choice of will to use when there are two (or more) families (ie there has been an additional marriage which has produced children).
Discretionary trust wills mean that specially chosen trustees will manage the estate and portion out the inheritance as they see fit. Because people’s circumstances change, this kind of will means that those who need the inheritance the most at the time of the testator’s death will receive it. The downside of this kind of will is that someone else will be making the decisions on your behalf, and they may not choose as you would have liked.
There is also a type of will called the living will. This is a different kind of will entirely, mainly due to the fact that in order for it to come into effect, the testator must still be alive. It is used to determine exactly what kinds of medical treatment can and should be used in the event of a life changing illness or accident. It is a way of making a decision when the testator can no longer speak for themselves (perhaps due to a coma, for example).
And these are just the most common types of will – others include the unsolemn will and the notarial will as well as many more.
When it comes to challenging a will, there are a number of different ways to go about it. One of those ways is to claim that the testator had a lack of capacity when making the will – that is, they did not have the mental capacity to legally write a will. This kind of challenge is actually on the rise, and this could be because dementia, including Alzheimer’s, is also increasing. Due to this, many family members find that they are not sure whether their loved one had the mental capacity to write the will or not.
But a lack of capacity isn’t just about whether or not someone had dementia. It can also be caused by head injuries, substance abuse, mental health disorders, and other medical conditions.
Although it is difficult to check for capacity because, due to its very nature, a will will usually only be challenged after the testator has died, there are legal ways to test this. The first is that the testator had to have understood what they were doing when making a will. The second is that they must understand exactly what it is they are giving away – an inventory will help if there is one, as it will show that the testator was fully aware of all the items that they wanted others to inherit. Finally, the testator must have been able to understand who they are giving these things to. If there is evidence in the will that shows understand of who is receiving what, then they will also help. An example of this is if close relatives receive more than distant acquaintances, for example.
Equally, the testator must not be suffering from any kind of mental disorder which would mean he or she would dispose of their assets any differently to if they were not suffering from that disorder.
Unless there is something truly odd in the will, the court will presume that the testator had the capacity to write it. However, if any doubt is raised, the burden of proof falls to those challenging the will. In order to do this, the court will need to see evidence of any statements made by the testator about the will, any evidence that the witnesses can give, any evidence that the testator’s solicitor can give, how much the will represents the testator’s personality and wishes, previous wills, how the testator treated family and friends and vice versa, and evidence from a GP or psychiatrist.
However, there have been some interesting deathbed confessions made over the years. Here are some examples.
Christian Spurling died in 1994, and if you’re a fan of all things Loch Ness (and in particular its monster) you may well know his name. And if not him, then what about his stepfather, Marmaduke Wetherell? The background is that in 1934, the Daily Mail newspaper received a photograph from a man named Robert Kenneth Wilson. A doctor. The photograph was supposedly the Loch Ness Monster (and the picture is one you will certainly have seen; it is known as The Surgeon’s Photo). It caused uproar across the world. But in 1994, Christian Spurling confessed that this photograph was a fake, perpetrated by his stepfather. Spurling was a model-maker, and he created the pretend monster that Doctor Wilson took the shot of.
In 1922, hugely famous Hollywood actor and director William Desmond Taylor was shot and killed. It became a massive scandal and one of the great mysteries of the time since no one was ever caught for the crime. In 1964, a reclusive woman named Margaret Gibson became unwell and called upon her neighbour – not for help, but to confess to the murder. She never gave a reason for shooting Taylor.
The assassination of JFK is a crime that has been given a certain amount of mystery over the years. And that mystery was intensified when CIA agent E. Howard Hunt confessed to playing a part in the murder. None of the mainstream media took the story up – another conspiracy?
And finally, aliens. When Lieutenant Walter Haut died, he wanted to let the world know that aliens really did land at Area 51 in Nevada. At least, that’s what he said…