money left in trust and ESA income related limit

rogerblack

Morglin wrote: »

You could, if you wanted to, see a solicitor for advice - there are things called 'deeds of variation' (or something like that) that can be applied to wills.

Might be worth a half hour appointment.

Lin

Make sure the lawyer understands benefits law and the regulations in this area.
A simple reading of the regulations leads me to believe that explicitly requesting someone leave you money in such a way you cannot use it for 'everyday needs', but only repairs, or other such things, would squarely amount to deprivation of capital.

You would be treated as if you had access to the capital.

Secondly, neglecting this, if there is any way legally that you can challenge the legality of the restrictions, and get your hands on the capital without the trust or other restrictions on it, you will be expected to do so, or again, be ruled as having deprived yourself of capital.

In scotland, for example, if you're the only surviving relative, as I understand it, you would normally be entitled to a minimum share of the estate, and you could challenge the will on this basis.

devildog

In answer to your question,yes it is possible to leave the money in trust. Trustees will have to be appointed(usually family members or family friends) Your grandma could also leave a 'letter of wishes' stating how this money should be used(not legally binding but clearly defines what she wants as a guide for the trustees)
It would not be a deprivation of capital because currently it is still your grans money, and when she passed on it still wouldn't be yours because it would be in a trust fund.
Whatever grandma wants to do with her money needs to be written up now, before she passes, because once she has gone you haven't a leg to stand on by stating she wanted this or that.
It was something I looked into last year (finally got round to writing will!) as a benificiary could (in theory) be in a similar position(nowhere near that stage yet I hasten to add) I haven't yet done this but I know the option is there for me.

Oldernotwiser

As you are disabled and seem to own your own home, I wonder if you're on any means tested benefits anyway. If you aren't, then receiving an inheritance won't affect your benefits.

rogerblack

devildog wrote: »

It would not be a deprivation of capital because currently it is still your grans money, and when she passed on it still wouldn't be yours because it would be in a trust fund.

I was meaning that it could be reasonably argued that if it was clear that you - effectively - initiated setting up the trust, by advising on conditions for it, that you are depriving yourself of the inheritance without these conditions.

Attempting this should at the least need advice of a solicitor skilled in the benefit rules, as getting it wrong could have severe consequences.

rogerblack

Oldernotwiser wrote: »

As you are disabled and seem to own your own home, I wonder if you're on any means tested benefits anyway. If you aren't, then receiving an inheritance won't affect your benefits.

Income related ESA is means-tested.
It tapers (for capital) from unaffected at 6000 pounds, at the rate of 4 pounds per 1000 pounds of savings per week.
At 16000 capital, you are not eligable.
JSA is similar, DLA is not means tested.

devildog

I appreciate what you are saying rogerblack but as long as her gran has her mental faculties and get's her affairs in order then it will not really matter if op advised on conditions. If advice was given gran could still do as she likes. It would be gran's signature on will, appropriately witnessed.
As you state, it really does need a solicitor to explain full implications etc because as I found out there is a lot to consider (espeically if you bring a house into the equation too)

rogerblack

devildog wrote: »

I appreciate what you are saying rogerblack but as long as her gran has her mental faculties and get's her affairs in order then it will not really matter if op advised on conditions.

To clarify - I'm not arguing that there is anything at all wrong with this from the legality of the will, or the trust.

Just that recommending to your gran the way for her to give you a bequest, and have it avoid being counted as capital would seem to fall squarely within the intent of the deprivation of capital rules.

And lawyers unfortunately don't always know enough about benefit rules to be sure. Of course, this raises the issue of how the DWP would ever come to know that you advised such.

There is also a way round it.
Any proposed scheme you come up with - put it to the DWP first.
If they say it is not deprivation of capital, then they are bound by that.

Sorry if I've been a little unclear - feeling crap today.

Mojisola

rogerblack wrote: »

Just that recommending to your gran the way for her to give you a bequest, and have it avoid being counted as capital would seem to fall squarely within the intent of the deprivation of capital rules.

And lawyers unfortunately don't always know enough about benefit rules to be sure. Of course, this raises the issue of how the DWP would ever come to know that you advised such.

There is also a way round it.
Any proposed scheme you come up with - put it to the DWP first.
If they say it is not deprivation of capital, then they are bound by that.

Asking the DWP about it will guarantee problems because they will then be able to prove that you knew about the trust in advance and possibly that you were suggesting it Grandma!

If, when Grandma dies and a discretionary trust is put in place in accordance with the will, the DWP will not have any say in it. It will be legal. It won't affect polyanthus' income and benefits. Lots of parents with disabled children have these arrangements in place for their children.

Oldernotwiser

rogerblack wrote: »

Income related ESA is means-tested.
It tapers (for capital) from unaffected at 6000 pounds, at the rate of 4 pounds per 1000 pounds of savings per week.
At 16000 capital, you are not eligable.
JSA is similar, DLA is not means tested.

I know the rules for means tested benefits but the OP is on contributions based ESA, although I know she may not be in the future.

dealer_wins

Given that my previous post was deleted by the forum police, I will try to be more diplomatic.

The OP thinks it is perfectly OK to .... ... .... out of taxpayers, and to deplete the pot for people who genuinely need help.