What is a Protective Property Trust?
A Protective Property Trust (also known as a Property Protection Trust or Right to Occupy Trust) is a legal arrangement included within your will that protects your share of the family home from being consumed by care home fees, while simultaneously giving your surviving partner the absolute right to continue living in the property for as long as they wish.
This type of trust is particularly valuable for married couples and civil partners who own property as tenants in common rather than joint tenants. When the first partner passes away, instead of their share passing outright to the survivor, it is placed into a protective trust. The surviving partner gains what's legally termed a "life interest" or "right to occupy" — they can live in the property rent-free for the rest of their life, but they don't legally own that share.
Because the deceased partner's share is held in trust rather than owned outright by the survivor, it cannot be assessed as part of the surviving partner's assets when means-testing for care home fees occurs. This protects at least 50% of the property value for your chosen beneficiaries, typically your children, while ensuring your partner is never made homeless.
The problem
- •Care home fees average £1,000–£1,500 per week in the UK
- •If you own assets over £23,250, you must self-fund care costs
- •Your family home is counted as an asset in means-testing
- •A typical £400,000 property could be depleted in 5–7 years of care
- •Children may inherit nothing if both parents require long-term care
The solution
- Protect 50% of property value from care fee assessment
- Surviving partner retains absolute right to live in the home
- Protected share passes to your children, not care providers
- Prevents property leaving your direct bloodline
- Included in our standard will service from £150
Who should consider a Protective Property Trust?
Couples with children
Anyone who wants to ensure at least half of the family home passes to children, grandchildren, or other beneficiaries rather than being consumed by care costs.
Second marriages
Protects your children from a previous relationship while ensuring your current partner can continue living in the home.
Estate protection
Homeowners concerned about protecting wealth from unexpected care home costs, creditors, or bankruptcy.
Uneven contributions
Where one partner contributed more to the property purchase, ensuring their contribution benefits their chosen beneficiaries.
How a Protective Property Trust works
Sever the joint tenancy
First, you must own your property as 'tenants in common' rather than 'joint tenants'. We can guide you through this simple legal process, which involves completing a form and registering it with the Land Registry. This means each partner owns a defined share (typically 50/50) rather than the whole property jointly.
Include the trust in your wills
Both partners create mirror wills that include a Protective Property Trust clause. When the first partner dies, their share of the property doesn't pass outright to the survivor but instead goes into the trust.
Trustees are appointed
The will names trustees (often the surviving partner and adult children) who legally hold the deceased's share. The trustees have a duty to protect that share for the ultimate beneficiaries.
Right to occupy granted
The trust deed grants the surviving partner an absolute, irrevocable right to live in the property rent-free for the rest of their life. They can also sell the property if needed (e.g., to downsize), but the deceased's share of the proceeds remains in trust.
Protection from means-testing
Because the surviving partner doesn't own the deceased's share, it cannot be assessed as part of their assets when care home means-testing occurs. Only their own 50% share is considered.
Ultimate distribution
When the surviving partner dies, the protected share passes to your chosen beneficiaries (typically children) as specified in the original will, completely bypassing care fee assessments.
Benefits of a Protective Property Trust
Risks, limitations and alternatives
Important limitations
Deliberate deprivation rules: If you set up a Protective Property Trust with the primary intent of avoiding care fees and then require care soon after, the local authority may deem this "deliberate deprivation of assets" and treat you as if you still own the full property. Our advice: set this up as part of normal estate planning while you're healthy, not in response to imminent care needs.
Only protects one partner's share: The surviving partner's own 50% share remains fully assessable for care fees. If they require care, their share could still be used to pay for it.
Trustee cooperation needed: The surviving partner cannot act unilaterally. Decisions about selling the property require trustee agreement, which could create family tensions in rare cases.
Tax implications: While often tax-efficient, complex estates may need additional inheritance tax planning. We assess this during your consultation.
Comparing your options
| Option | Care fee protection | Partner security | Inheritance guarantee |
|---|---|---|---|
| Protective Property Trust | ✓ 50% protected | ✓ Total security | ✓ Guaranteed |
| Joint tenancy (standard) | ✗ No protection | ✓ Total security | ✗ At risk |
| Life interest trust | ✓ 50% protected | ~ Income only | ✓ Guaranteed |
| Discretionary trust | ✓ Potentially 100% | ~ Trustee discretion | ~ Flexible |
Tax and legal considerations
This is general information only. We provide tailored advice during your consultation based on your specific circumstances.
Inheritance Tax (IHT)
A Protective Property Trust can be highly tax-efficient. When structured correctly, it allows each partner to use their individual nil rate band (currently £325,000) and residence nil rate band (currently £175,000 when leaving a home to direct descendants). This means a married couple could potentially protect up to £1 million from inheritance tax.
The spouse exemption still applies to the surviving partner's right to occupy, so no IHT is usually payable on the first death.
Capital Gains Tax (CGT)
The property typically qualifies for Principal Private Residence Relief, meaning no CGT when sold by the surviving partner. The trust share receives a "tax-free uplift" to market value on the first death, which can reduce CGT for beneficiaries when they eventually sell.
Legal ownership
The property must be owned as tenants in common. We can guide you through severing a joint tenancy — a straightforward process involving a form and Land Registry fee (currently around £40). This should be done before or at the same time as making your wills.
Trustee responsibilities
Trustees must act in the best interests of both the surviving partner (who has the right to occupy) and the ultimate beneficiaries. This includes maintaining insurance, agreeing to property sales if needed, and ensuring the property isn't left to deteriorate.
Costs and typical timelines
Our pricing
Standard will: £175 single / £300 couple
Adding a Protective Property Trust: +£150 single / +£250 couple
Total cost for will with trust: £325 single / £550 couple
Additional costs: Severing joint tenancy (Land Registry fee ~£40), optional storage £50/year single or £55/year couple
Typical timeline
- Week 1: Free consultation to discuss your circumstances
- Week 2: Draft wills prepared and sent to you for review
- Week 3: Final wills executed in person or remotely
- Ongoing: Free triennial reviews to keep your will current
Real-world example
John and Mary, Kent homeowners
The situation
- • Married couple, both aged 68
- • Own £450,000 home as joint tenants
- • Two adult children from the marriage
- • Concerned about care home costs
- • Want to ensure children inherit the home
What we did
- • Severed joint tenancy (each now owns 50%)
- • Created mirror wills with Protective Property Trust
- • Named children as co-trustees with survivor
- • Included right-to-occupy clause for survivor
- • Cost: £250 for both wills
The outcome
Three years later, John passed away unexpectedly. His £225,000 share went into the protective trust. Mary continues to live in the home with complete security. Five years after that, Mary required residential care.
Without the trust: The full £450,000 would have been assessed. With average care costs of £60,000/year, the entire property could have been consumed in 7.5 years.
With the protective trust: Only Mary's £225,000 share was assessable. John's protected share passed to their children upon Mary's death, preserving £225,000 plus growth for the family — exactly as John and Mary intended.
Frequently asked questions
Can my partner sell the house if they want to downsize?
Yes, absolutely. Your partner can sell the property with the agreement of the trustees. Your share of the sale proceeds remains protected in the trust, and your partner can use their share (plus occupy the trust's share) of any new property purchased.
What happens if my partner remarries?
Your share remains protected in the trust and will still pass to your chosen beneficiaries (typically your children) when your partner dies. The new spouse has no claim to your protected share, preventing 'sideways disinheritance'.
Is this considered deliberate deprivation of assets?
Not if set up as part of normal estate planning while you're in good health. The key is establishing the trust well before any care needs arise, as a prudent family protection measure rather than in response to imminent care requirements.
Do both partners need protective trusts in their wills?
Yes, we recommend mirror wills where both partners include the same protective trust provisions. This ensures whichever partner dies first, the survivor is protected and 50% is safeguarded for your beneficiaries.
Can we change our minds after setting this up?
Yes. While both partners are alive, you can revoke or change your wills at any time, including removing the trust provisions. Once the first partner dies, the trust becomes active and cannot be undone.
What if we rent out the property?
Your partner can rent out the property with trustee agreement. Rental income would typically be shared proportionally (reflecting the ownership split) or used for property maintenance. This flexibility can be specified in the will.
Do we need a solicitor to be a trustee?
No. Most people appoint their adult children and the surviving partner as trustees. Professional trustees (solicitors or accountants) can be appointed if there are no suitable family members, but this incurs ongoing fees.
How does this affect our inheritance tax position?
It's often tax-efficient because it allows both partners to use their nil rate bands and residence nil rate bands effectively. We assess your specific situation during consultation to optimize your tax position.
Can this protect against bankruptcy or creditors?
Yes, as a secondary benefit. Once your share is in trust, it's generally protected from the surviving partner's creditors or bankruptcy, though this shouldn't be the primary motivation for establishing the trust.
How long does it take to set up?
Typically 2-3 weeks from initial consultation to executed wills. If you need to sever a joint tenancy first, add another 2-3 weeks for Land Registry processing.
Expert estate planning advice in Kent
David at Legacy Lines has helped hundreds of Kent families protect their homes through carefully drafted Protective Property Trusts. As an appointed representative of New Leaf (WWF) Ltd, we provide fully compliant, expert will writing services.
We offer free consultations at our Kent office or via video call, with evening appointments available for your convenience.
Contact: David@legacy-lines.com
Last reviewed: October 2025
This information is for guidance only and does not constitute legal advice. Individual circumstances vary, and we assess each client's specific situation during consultation.