New will for family with learning disabled offspring

larkim

Hi

Obviously this is something we are going to take professional advice on before establishing, but wanted to get a flavour for solutions / ideas that others have used when establishing a will for a family with a mix of children's ages and with one child with learning disabliities.

Scenario is myself and my wife, mid 40s, no current will, no previous marriages, joint tenants of home with small mortgage to pay off over next few years, no other significant assets (some moderate bank accounts, assume less than £20k savings). Four children, aged between 9 and 17, with a 14 year old who has learning disabilities (Down's Syndrome). All children from our marriage.

We have never set up a will previously but are conscious that we really should.

In the event of one of us predeceasing the other, we'd expect to leave our entire estate to our surviving spouse with no restrictions (though if there are reasons why that might not be advisable, any input gratefully received).

Inevitably though we start thinking about what would happen if either we were both to depart in a single incident, or if a surviving spouse were to die and a new will hadn't been made taking account of the death of the other spouse. Or indeed whether we would want to place any restrictions on the surviving spouse from altering the planning for our offspring which was done whilst we were both alive (e.g. prevent dilution in the event of subsequent marriages etc etc).

If our second child didn't have learning disabilities, we'd simply draft the surviving will to make provision for them each inheriting a 1/4 share of our estate, potentially with a provision to delay inheritance until they reached say 21 (so therefore a Trust arrangement). However, given that our main asset is the house, and we would probably want any of our children who were still minors to have the chance to continue living in the existing family house, I'm unclear how that would affect the inheritance of an older child (e.g. if eldest was 23, youngest was 14, how does the eldest get access to the financial benefit of the estate which they might legitimately be able to use to get themselves a start buying a house etc).

Obviously then there is the complication of the learning disabled child. We could make provision as above for 1/4 shares, but specify a longer term or lifetime Trust for them with their siblings as Trustees. Presumably we could utilise a discretionary Trust by having our child as the main beneficiary but also, say, nominating an appropriate charity as an additional beneficiary with a letter of wishes to guide the siblings about how to use the income / capital in the Trust. But again, we run into the issue of where the family age groups span 18, if the main asset in the Trust is the house and there is an intention for some of the minor children to remain living there, how can the "cash" value of the Trust really benefit the offspring? And does this "condemn" the child with learning disabilities to be living on statutory minimum income through benefits for the rest of their life (subject to top ups from the Trust)?

(We have plans for suggested guardianship of the children, accepting that these aren't binding in any way)

Sorry if this is a bit rambling, but we spent a few hours discussing this last night and had more questions than answers - perhaps we are over-thinking it!!

Thanks in advance for any input at all!

Yorkshireman99

larkim wrote: »

Hi

Obviously this is something we are going to take professional advice on before establishing, but wanted to get a flavour for solutions / ideas that others have used when establishing a will for a family with a mix of children's ages and with one child with learning disabliities.

Scenario is myself and my wife, mid 40s, no current will, no previous marriages, joint tenants of home with small mortgage to pay off over next few years, no other significant assets (some moderate bank accounts, assume less than £20k savings). Four children, aged between 9 and 17, with a 14 year old who has learning disabilities (Down's Syndrome). All children from our marriage.

We have never set up a will previously but are conscious that we really should.

In the event of one of us predeceasing the other, we'd expect to leave our entire estate to our surviving spouse with no restrictions (though if there are reasons why that might not be advisable, any input gratefully received).

Inevitably though we start thinking about what would happen if either we were both to depart in a single incident, or if a surviving spouse were to die and a new will hadn't been made taking account of the death of the other spouse. Or indeed whether we would want to place any restrictions on the surviving spouse from altering the planning for our offspring which was done whilst we were both alive (e.g. prevent dilution in the event of subsequent marriages etc etc).

If our second child didn't have learning disabilities, we'd simply draft the surviving will to make provision for them each inheriting a 1/4 share of our estate, potentially with a provision to delay inheritance until they reached say 21 (so therefore a Trust arrangement). However, given that our main asset is the house, and we would probably want any of our children who were still minors to have the chance to continue living in the existing family house, I'm unclear how that would affect the inheritance of an older child (e.g. if eldest was 23, youngest was 14, how does the eldest get access to the financial benefit of the estate which they might legitimately be able to use to get themselves a start buying a house etc).

Obviously then there is the complication of the learning disabled child. We could make provision as above for 1/4 shares, but specify a longer term or lifetime Trust for them with their siblings as Trustees. Presumably we could utilise a discretionary Trust by having our child as the main beneficiary but also, say, nominating an appropriate charity as an additional beneficiary with a letter of wishes to guide the siblings about how to use the income / capital in the Trust. But again, we run into the issue of where the family age groups span 18, if the main asset in the Trust is the house and there is an intention for some of the minor children to remain living there, how can the "cash" value of the Trust really benefit the offspring? And does this "condemn" the child with learning disabilities to be living on statutory minimum income through benefits for the rest of their life (subject to top ups from the Trust)?

(We have plans for suggested guardianship of the children, accepting that these aren't binding in any way)

Sorry if this is a bit rambling, but we spent a few hours discussing this last night and had more questions than answers - perhaps we are over-thinking it!!

Thanks in advance for any input at all!

Ask around a find a good solicitor, not a will writer, and ask their advice. You can't prevent inheritance of a trust beyond age 18. Personally I would be discussing as big a provision as possible for the disabled child. Your house may not be suitable for occupation by one disabled child.

larkim

Yep, solicitor is intended to be major port of call. Just wondering if anyone had been through some of the thought processes and in particular had solutions (e.g. your one - big provision) that weren't on our radar. Even good solicitors can miss potential options which, had you known about them, might have been worth considering.

What do you mean about not being able to prevent inheritance of a trust beyond 18? I thought it was a common settlement to prevent wild and crazy university years from a recently bereaved adult child inheriting chunks of their parents' estate?

larkim

btw, agree about the house for the disabled youngster. Wasn't intending that they'd be there for life.

On the "big provision" for the disabled child, I'm in two minds - why should I "prefer" one of my offspring over the other simply because of the disability? Plus quantifying the split is a difficult one to grasp.

Mojisola

larkim wrote: »

In the event of one of us predeceasing the other, we'd expect to leave our entire estate to our surviving spouse with no restrictions

Inevitably though we start thinking about what would happen if either we were both to depart in a single incident, or if a surviving spouse were to die and a new will hadn't been made taking account of the death of the other spouse.

A good will should take account of several scenarios.

Ours deals with one spouse dying, both dying together, us and all our children dying together and a child dying before us but leaving children of their own.

One possibility you might want to think about is to set up a trust for your disabled child after the death of the first parent.

If the survivor went on to remarry, their will would no longer be valid. If they failed to make another will leaving money for the children and died first, the second spouse could inherit everything.

Although that would be tough on the healthy children, it could seriously affect the disabled child's future.

Have you seen this -
https://www.downs-syndrome.org.uk/for-families-and-carers/willsandtrusts/

glennevis

Same scenario in our family. You should really consult a specialist solicitor. The charity Scope may be able to recommend ones who specialise in learning difficulties.

larkim

Thanks both. I've already been through the DS site for advice etc - my problem is that so much of it is given very generically without good real world case studies of arrangements that other families have made, which is why I've posted here. As families go, even with our learning disabled youngster, we're fairly straightforward as an example.

As I've said, we'll be going down the legal route soon enough. But my professional experience with lawyers is that they are very good at drawing up what you want into a legal agreement (whatever that might be), but often less good at identifying potential options that you might want to consider. The really really good solicitors are better at that, but you pay for it (and could be money well spent). But also there is a point at which they'll say "That's not a matter for the will" etc and then the experience of other families will be invaluable.

Thanks for the posts so far though - any more experience (other than "Go see a solicitor" - which I know is very sound advice and I will be taking!!) gratefully received!

paddy's_mum

It might be worth thinking about some sort of life insurance policy to help with the costs of housing and caring for the less able child. When I had young-ish children, we had such a policy in place and the trustees had almost unlimited discretion to use that money in ways that best cared for the children.

For example, there would have been enough money to build a granny annexe to our home as well as hire a housekeeper so that my mother would have been relieved of the day to day physical struggle of caring for the children but would have been present to love, teach and guide them.

To avoid any future conflict over 'not fair shares...:( ' money could be held in trust and any residue divided between the surviving siblings should the less able child pre-decease the others. I suggest that it would be a very hard-hearted, grasping and unloving offspring that would begrudge meeting the needs of a child with a disability. There's a place for absolute even-stevens and I don't believe that this is it!

Well done for putting effort, thought and care into making a will. I wish more people did so as such a lot of confusion, quarreling, hostility and unhappiness would be avoided.

What took you so long? :rotfl::T:A

jackyann

I was often asked about this at work, and I have given advice on here: go to one of the major charities to begin with.
If you have one that you trust and know already, go to them. Not local organisers (usually) but contact the national office and ask. They usually have useful information, some have recommended solicitors.

You need to take account of the rules around benefits, but also be aware that they can change.
You especially need to be aware of housing and associated care, which means thinking about how you see the future for your child with Down's Syndrome.

There are many scenarios, that is why I'd begin with a charity that has a lot of experience, and go from there.

larkim

paddy's_mum wrote: »

What took you so long? :rotfl::T:A

A complete absence of concern about our own mortality!

Actually, its more the ageing of our parents that have made us think about it - now they are getting too old to step into our shoes, we're less happy to just think "don't worry, it'll be sorted out by those we leave behind" and with our learning disabled offspring on the cusp of reaching an age where decisions get more complex it's focussed the minds a little!

Brighty

A bit of light reading in the thread below regarding trusts and access at 18 or not, including looking after a child with a disability.
https://forums.moneysavingexpert.com/discussion/5653145

I was told by a step solicitor, that if you specify 21 or 25 in the will trust, the beneficiaries can access it at 18, but only if they are ALL
1. are living; and
2. are all of full legal capacity; and
3. agree unanimously.
If any of the above fail, they have to wait till the age you specified. Would your 14yr old be deemed to have 'full legal capacity'?

If you want to protect your kids inheritance from a re-marriage after the first death, then you'll need to change the property to tenants in common and have both wills leave each parents half to the kids, with a caveat that the surviving spouse has the right to continue living in the house till they die (or remarry, or move if you like). if you leave everything to the spouse, you have no control over what they do with everything, they could remarry and leave the lot to the new spouse if they wish, your kids get nothing.