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Discretionary Trust Funds and Deprivation of capital
Comments
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What will happen is that they will consider the amount you deem to have deprived yourself of as notional capital (treated as though you still have it).
There are diminishing capital rules which will then come into effect. Do a search for some info
Remember to always keep receipts for anything you buy so that you can prove your expenditure isn't unreasonable.I'll get you, my pretty, and your little dog too!0 -
Have you received the inheritence yet? because if you have then any trust you set up would still be counted towards means tested benefits, even if it's half of what you get, you will still be deemed as having had the full amount and this will all be taken into account when on/applying for means tested benefits.
If you haven't yet received the money and it goes directly into a trust then you would still be able to claim means tested benefits and they shouldn't take the trust money into account.0 -
Thank you for the replies. A little more confusion. I received the following (abridged) from a lawyer: comments welcome.
2. The best option would be to vary your mother's Will so that your inheritance passes direct to your disabled child with the Deed of Variation setting up the terms of the discretionary trust. I cannot guarantee that this would not be treated as a deliberate deprivation of capital but there are stronger arguments for saying that it is not.
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Decisions about deprivation of capital are down to the discretion of an individual decision maker.
Lawyers often do not understand the rules of benefit entitlement.
You seem to have gotten one that doesn't.
Yes, decisions about deprivation of capital are sometimes down to the discretion of the individual decision maker, but they have to follow their own rulebook!
Sure - they can make errors.
Relying on them making an error is very, very bad practice.
http://www.dwp.gov.uk/docs/dmgch29.pdf
29174 'Note: This does not apply to property specifically bequeathed in a will. Such property belongs to the person who inherits the property from the date of death of the person whose estate is being administered and is actual capital. This is subject only to the right of the executors or executors dative to resort to the asset if the remainder of the estate is insufficient to meet the outstanding debts of the deceased.'
The money you are owed due to the will is treated now as if you actually have it (will have it at some future date).
If you apply to the court to not have it, for the purposes of obtaining benefit, the deprivation of capital couldn't be clearer.
The only safe way to attempt this would be to ask for the prior permission of the DWP, that is one circumstance where - in principle - there is more discretion.
Read 29169 on, and the definitions of capital at the beginning of the document.Have you received the inheritence yet?
If you're named in the will, or would normally get money due to being an unnamed beneficiary, then you are treated as already having the money, because if you do nothing, you will have it.
If you give it away, it's your right, but it may be seen as deprivation of capital if it's to get more benefit.
The only time you can do this is to get the person to vary the will before death.0 -
Have you received the inheritence yet? because if you have then any trust you set up would still be counted towards means tested benefits, even if it's half of what you get, you will still be deemed as having had the full amount and this will all be taken into account when on/applying for means tested benefits.
If you haven't yet received the money and it goes directly into a trust then you would still be able to claim means tested benefits and they shouldn't take the trust money into account.
No that's just not right. This is not a PI or clin neg trust. this will be considered as deprivation. rogerblack has put a link to the Decision Makers Guide.I'll get you, my pretty, and your little dog too!0 -
No that's just not right. This is not a PI or clin neg trust. this will be considered as deprivation. rogerblack has put a link to the Decision Makers Guide.
well all I can say is I have personal experience of this and what I've stated is exactly what happened in this case.
That was the advice given by the family lawyer and that's what was done. It's been nearly 5 years now and it has never been counted as capital.0 -
well all I can say is I have personal experience of this and what I've stated is exactly what happened in this case.
That was the advice given by the family lawyer and that's what was done. It's been nearly 5 years now and it has never been counted as capital.
Were the DWP informed that you varied the will, either before or after the event?
If they weren't, then you are at risk of having the overpayment recovered.0 -
rogerblack wrote: »Were the DWP informed that you varied the will, either before or after the event?
If they weren't, then you are at risk of having the overpayment recovered.
they are fully aware of all circumstance, they have received copies of all the paper work involved as requested and it has never been an issue.0 -
It would be a risky thing to do. Whatever you decide, you should take specialist legal advice, not the general letter to which you referred.
It appears to me that you could well be determined to have deprived yourself.
The guidance states:
Pending the completion of the administration, a beneficiary without a specific bequest (a residuary beneficiary) has valuable rights in the form of a chose in action (see DMG 29036). This can be valued (DMG 29647) and should be taken into account as actual capital. If the residuary beneficiary gives away his interest by a deed of variation before administration is complete then this may amount to deprivation and the DM should consider DMG 29815 et seq.
When deciding whether it is deprivation or not, the guidance includes:
DMs have to decide if the claimant's or partner's significant purpose was to get benefit or more benefit. The DM has to make such a decision each time claimants or partners deprive themselves of capital. So if claimants have spent their capital on several things the DM has to decide the claimant's purpose for each act of deprivation.
Normally there is no direct evidence to show the claimant's or partner's purpose was to get benefit or more benefit. So the DM has to consider all the facts of each case when making the decision1....much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.0 -
I'd agree that getting proper solid legal advice is the best way to go, your always going to get a difference of opinion asking on forums.0
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they are fully aware of all circumstance, they have received copies of all the paper work involved as requested and it has never been an issue.
If you advise the DWP beforehand, as mentioned, they can choose to do different things, and you have no risk.
Doing it afterwards, especially with the pressures on the decisionmakers to save money...0
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