Making a Will to Protect Disabled Children
10 August 2018
By including a Trust in your Will, you can provide your disabled child with an inheritance, safe in the knowledge that the money will be managed by Trustees. This means it will not force your child to manage their own finances or affect their means-tested benefits.
Providing for Disabled Children
If you have a disabled child, you might wonder how you are going to provide for them when you are gone. Your child's disability might be such that leaving them a large amount of money would put them in a vulnerable position. He/she might not be able to deal with their own finances, could lose their means-tested benefits or could be open to abuse from others.
This can put you in a difficult situation, because of course you will want to ensure your child is taken care of after your death. You might consider leaving your entire Estate to someone else on the basis that you trust them to use the money to look after your disabled child. However, this is very risky, as an outright gift means that the money legally belongs to the Beneficiary and unforeseen circumstances may arise, such as death, debts and divorce.
For instance, let's imagine that you have two sons – Tom has a mental disability, but Ben does not. You leave Ben your entire Estate on the basis that he will care for Tom, and Ben is more than willing to oblige. But after your death Ben runs into financial trouble and his creditors go after the inheritance money to pay of his debts. His marriage then falls apart, and the divorce settlement depletes his assets even further. All of a sudden, there's very little left in the pot for Tom's needs. When Ben dies a few years later, his Estate is distributed to his children, leaving Tom with nothing.
Of course, this is a worst-case scenario. But it highlights how things might not go according to plan, despite everyone's best intentions. That is why it's best to consider ring-fencing the inheritance earmarked for a disabled child into a Trust, which you can establish in the terms of your Will.
Trusts in Wills
In order to do this, you need to create a Trust in your Will. There are various types of Trusts and they each work in slightly different ways. The one that is most commonly used to protect disabled children is a Disabled Person's Trust.
Disabled PersonsTrusts are designed for circumstances where you wish to leave some or all of your Estate to a Beneficiary who is unable to manage the inheritance themselves. In these circumstances you can leave an amount in your Will to people you choose (called your Trustees) to manage the inheritance on behalf of and for the benefit of the disabled Beneficiary during their lifetime.
Upon the disabled Beneficiary's death the Trustees decide how and when to distribute the remainder of the Trust between other potential Beneficiaries. You can help guide the Trustees' decision making by leaving a Letter of Wishes stating how you would prefer the Trust to be used – for example, how you would like the Trust to be distributed after your disabled child's needs have been fully met.
This has a number of advantages for those with disabled children, namely that:
- Your child does not own the assets in the Trust, so it will not affect their means-tested benefits
- Whilst the assets remain in the Trust, they are not owned by anyone else in their personal capacity so cannot form part of an individual's Estate for the purpose of debt, death or divorce
- Your child will be able to benefit from the assets at the trustees' discretion
- Your child will not have to manage the assets in the Trust
- Your child cannot be influenced into using the money for other purposes
- Your Trustees can use the Trust assets to purchase items on behalf of the disabled child and ensure that, as far as possible, your child's needs are taken care of.
Fixed Fee Wills and Trusts
At Co-op Legal Services we provide Fixed Fee Wills and Trusts. Once we have provided you with a written quote for the agreed work to be done, that price will not change.
If you have a disabled child and would like to know how to protect him/her in your Will, we can help you. Simply contact our Will writing team and explain your situation. We can then advise how to tailor your Will to your individual circumstances.