🚨 “We’ll just put the house in the children’s names…” It can sound like a simple way to protect the family home. Unfortunately, it can create far more problems than it solves. My client “Jack” was transferred his parents’ home around 12 years ago. His parents continued living there and Jack lived elsewhere. Fast-forward 12 years. Dad has now died. Mum is in a care home. And the Local Authority is asking why Mum no longer owns her share of the house, why it was transferred to Jack and what the reasons for that transfer were. Jack can’t remember which solicitors dealt with it, there’s no paperwork at home explaining the advice that was given at the time, and the questions from the Local Authority are causing him a considerable amount of stress and worry. And that’s only the first problem. There are actually FOUR separate issues here. 1️⃣ Care fees / deprivation of assets The Local Authority is entitled to investigate the circumstances surrounding the transfer and whether avoiding future care costs formed part of the reason for it. The fact that the transfer happened 12 years ago does not automatically stop those questions being asked. 2️⃣ Inheritance Tax Mum and Dad gave the property away but continued to live there. A rental agreement was apparently drawn up, but sufficient market rent was not actually paid. That means the arrangement failed to remove the property from Dad’s estate under the gift with reservation of benefit rules. So despite Dad having transferred his share of the house 12 years ago, we now have to bring its value back into his estate for Inheritance Tax purposes. And Dad’s Will left his estate to Jack rather than to Mum, so there is no spouse exemption available on that part of his estate. The result? Jack now has Inheritance Tax to pay. 3️⃣ Capital Gains Tax Jack owned the property for around 12 years while living elsewhere. He has only recently moved into it and now wants to sell. The property has increased significantly in value during those 12 years, so Jack will have a Capital Gains Tax liability when he sells it in respect of the taxable gain, subject to the available CGT reliefs and allowances. Had Mum and Dad retained the property and Jack inherited it on death, the CGT position could have been very different because assets are generally rebased to their market value at death. 4️⃣ AND HERE’S ANOTHER CONSEQUENCE I DIDN’T EVEN MENTION IN THE VIDEO – JACK GOT DIVORCED Because the house had been transferred into Jack’s name, it was an asset he owned when he went through his divorce. The property therefore had to be taken into account as part of his overall financial position during the divorce proceedings and it ultimately went against him in the financial settlement – his ex-wife received more of their matrimonial assets. His parents had given him their home believing they were protecting it. But by putting it into Jack’s ownership, they had also exposed a valuable family asset to events in Jack’s own life. And this is the frustrating part… There may have been a much cleaner way of achieving what Mum and Dad were trying to do. They could potentially have retained ownership of their home, severed the joint tenancy so they owned it as tenants in common, and put appropriately drafted Wills in place incorporating a life interest property trust. On the first death, the survivor could continue living in the property while the deceased’s share was ultimately protected for the chosen beneficiaries. No unnecessary lifetime transfer of the house. No 12 years of CGT exposure for Jack. Potential spouse exemption on the first death. CGT rebasing on death. Potential protection of the first person’s share if the survivor subsequently required care. And the house would not have become Jack’s personal asset 12 years ago, exposing it to the consequences of his own divorce. Giving your home to your children is not a simple care-fee or tax-planning strategy. Sometimes a transaction that looks like it has “protected” the house has actually created more tax, mor - @that.wills.lady