RIGHT OF OCCUPATION TRUSTLooking after those important to you
Why would I put a Right of Occupation Trust in my Will?
For the majority of us, the family home is our largest and most valuable asset. Following our death, many of us want the home to pass to particular beneficiaries; most commonly our children.
What would happen if you had someone else living with you? This could be a partner, spouse, relative or friend for example. If you leave the property directly to the beneficiaries, it can leave that person with no where to live. If you leave the property directly to that person, and they meet a new partner or go into care, the beneficiaries may not inherit the property as you wish. Ensuring the person has somewhere to live after your death, could be equally as important as making sure it passes to the children.
A “Right of Occupation Trust” is often the fairest, and most robust option for all involved. It would ensure that someone could live in the property for a certain timeframe, but also protect the asset for the children.
What are the benefits?
SIDEWAYS DISINHERITANCE
So often assets are left to a partner or spouse through a simple Will. It is done in the hope that the asset will later pass down to the children. However, this can be problematic; especially if the surviving partner meets a new partner or re-marries. Also, it is not uncommon for the children to lose out because the surviving partner goes into a care home, changes their Will or goes bankrupt. A Right of Occupation Trust is a really effective way to avoid this, and help guarantee your children’s inheritance.
KEEP CONTROL
This type of trust structure is commonly used to control assets after death. The trust can provide flexibility, and certainty as to who the property will ultimately pass to in the future.
FLEXIBILITY
The trust can be adapted to suit your own personal preferences. For example, you may choose to allow the occupant to live in the property for the rest of their life, or for a specific period of time. You may also wish to impose certain conditions on the occupant i.e. that they pay the bills, and do not substantially change the property without permission. Our job is to tailor the trust you your specific requirements and preferences, this gives you total control over the property after you have passed away.
GUARANTEE INHERITANCE
So many factors affect whether or not the family home is passed down to children. For someone who wants to guarantee that their partner or spouse has somewhere to live, but also control who ultimately inherits their home (or any property), a Right of Occupation Trust is the best option.
PEACE OF MIND
Have peace of mind that your partner will not be left homeless after you’ve passed, but know that the asset will ultimately pass to your chosen beneficiaries.
Frequently Asked Questions
Clients often hope that their children would allow their partner/spouse/friend to continue living in the property. However, there are many situations that could mean the occupant has to leave the property; even where the beneficiaries have the best intentions.
If one of the children were to get divorced, go bankrupt or pass away, the property could end up going sideways to someone else and the occupant having to move out. Also, by making no provision for the occupant, it can lead to a Will being challenged under the Inheritance (Provision for Family and Dependants) Act 1975 leaving the beneficiaries with no guarantee of inheriting the property should the challenge be successful.
By doing a Right of Occupation Trust, you are ensuring that the occupant can continue to reside in the property, whilst protecting it for the children in the long term.
Some clients may leave their property directly to their partner/spouse in the hope that when they pass away, the property would pass to the beneficiaries in the future. This has several pitfalls. For example, if the partner/spouse were to meet a new partner, re-marry, go bankrupt, go into care, or simply sell the house and spend all the proceeds, the beneficiaries will not inherit the property as intended.
You only need to do this trust once. It is worded in such a way that if a client moves home, the new property will also be covered under the trust and would allow the occupant to live there.
The majority of clients allow the occupant to live in the property for the rest of their life. However, this may not be appropriate and clients prefer to restrict it. For example, they may allow the occupant to live their for a specified period of time, or up until the occupant cohabitates with a new partner, or remarries.
Yes, a Right of Occupation Trust may be appropriate here. You may wish to allow that child to reside in the property for a period of 12 months following your death to give them sufficient time to get themselves sorted.
Yes. The right of occupation could be subject to conditions such as the payment of all household bills, council tax and buildings/contents insurance. You would also want to make sure that they keep the property in a good state of repair, and that if they wish to make any alterations to the property, they consult with the property trustees.
Generally, a Right of Occupation Trust would end when the occupant passes away, or when any specified period has lapsed. However, there may be other reasons too. For example, if the occupant was to go into care, they stopped paying the bills, or they abandoned the property, this may be grounds for ending the right of occupation and passing the asset to the beneficiaries.
