The Protective Property Trust (Deed of Severance) has become popular, with complex family arrangements such as in second or third marriages, there is a need to ensure that each of the couples share and interest in the estate passes as they would wish and benefits their respective children (if that is their wish). In such cases it would achieve little were the couple to simply gift all of their estate to their spouse (or partner) in the expectation that their wishes would be carried out. Such planning would fail in its entirety should the survivor remarry, cohabit or simply rewrite their will. (They could of course simply spend it all before the children inherit on second death!)

The biggest reason for the use of a Protective Property Trust lies here. Where there is no inheritance tax liability, this trust guarantees the share of the main asset, the family home, is protected by the Protective Property Trust. This ensures that whatever happens, the deceased’s share is protected from future predators, and ensures that their share will pass to their named beneficiaries, but also ensures that the survivor has the right to remain in the family home.

Property held as joint tenants has the advantage that it will pass automatically on death to the survivor, however the disadvantage of this is that it does not protect the share of the asset of the first to die should the remaining spouse or partner remarry, or cohabit.

In order to make the best use of property we need to convert the title to TENANTS IN COMMON. This is achieved by severing the tenancy and registering the change with Land Registry. This ensures that both parties can decide where their respective share will pass and to whom. The Protective Property Trust can ensure that their children will inherit their share regardless of what the survivor does.

This is particularly useful in cases of children from previous relationships. If one, or both, of the testators has children from a previous marriage, the Protective Property trust can allocate their share to be divided equally between those children, ensuring their spouse or partner can leave their share to all of their children, or grandchildren, as the case may be.

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