New will for family with learning disabled offspring

Yorkshireman99

larkim wrote: »

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?

Some trusts that purport to restrict inheritance beyond the age of majority to say 25 don't work. The beneficiary can force payment at 18. I echo what others have said about a choice of a specialist solicitor in particular see if you can find STEP member if you envisage setting up a trust. You sound somehowhat cynical about the legal profession. Sorry to be blunt but don't fall into the trap of thinking that you know better than the professional advisor. Too often people who say they are looking for advice but are really looking for one that agrees with their own preconceptions. Sadly your situation is not unique so the effort put in to chose the right advisor is seldom wasted. Personal recommendation is often invaluable.

larkim

No, I'm not at all cynical about the lawyers. They are invaluable, and (despite having a law degree myself!) don't have any intention of trying to do this without good input. I still recall my Trusts law lecturer recounting the tale of one of the most famous of Trusts experts specifically intentionally dying intestate because he was so concerned that this area of the law was so complex it was difficult to get it right!!

The only scepticism I have about lawyers is that you are paying them to put into a legal context your desires, and they are excellent at that. But I've encountered enough lawyers in my professional day job to know that most lawyers will first and foremost want to know what you want, and it is not really their place to advise you as to what you *should* do.

So I want to get a settled idea, in laymans terms, of what I *should* do first of all before I put that in front of a lawyer and say "advise me on this, and if there are no pitfalls that you can see, put it into a binding agreement for me to execute".

I'm sure though the advice about talking to lawyers who *have* seen these things (in terms of making provision for learning disabled offspring) before is very good advice, and that chimes with everything that the DSA / Scope / Mind etc suggest - advice I will be following!!

silvercar

A friend has a disabled sibling and his parents have made very clear all along that their disabled child will inherit everything as she will never be able to earn her own living. This may seem harsh on the 2 non disabled siblings, but a lot of people don't inherit because their parents never had/ spent it all/ used for care etc.

Now that the friend (& siblings) are all adults they are in the position where not only the disabled sibling will inherit but the siblings will have the responsibility of looking after the sibling.

larkim

Its an interesting conflict. Part of my intention as a parent is to leave behind benefits for all of my children so I can't see us following that thought process. Additionally, I used to work in the sector of learning disability care and actually saw first hand plenty of trusts established for the benefit of some very impaired adults who frankly had no need for it whatsoever as the State provided well enough for their necessities. Of course, the safety net of the State might not always exist...

Of course, I fully hope and expect to live long enough to see all of my children attain their majority and see them settled in the lives that they choose for themselves, including my learning disabled child. That would make life a whole lot easier to comprehend the choices we might be making in a will - but at their current ages we truly don't know what's going to take place over the next 10-15 years so its guesswork about what would be "best" for any of them!!

Thanks for the links provided to the "animated" discussion about the ability to wind up Trusts. Interesting stuff!!

Yorkshireman99

larkim wrote: »

No, I'm not at all cynical about the lawyers. They are invaluable, and (despite having a law degree myself!) don't have any intention of trying to do this without good input. I still recall my Trusts law lecturer recounting the tale of one of the most famous of Trusts experts specifically intentionally dying intestate because he was so concerned that this area of the law was so complex it was difficult to get it right!!

The only scepticism I have about lawyers is that you are paying them to put into a legal context your desires, and they are excellent at that. But I've encountered enough lawyers in my professional day job to know that most lawyers will first and foremost want to know what you want, and it is not really their place to advise you as to what you *should* do.

So I want to get a settled idea, in laymans terms, of what I *should* do first of all before I put that in front of a lawyer and say "advise me on this, and if there are no pitfalls that you can see, put it into a binding agreement for me to execute".

I'm sure though the advice about talking to lawyers who *have* seen these things (in terms of making provision for learning disabled offspring) before is very good advice, and that chimes with everything that the DSA / Scope / Mind etc suggest - advice I will be following!!

Noted! In my experience a really good lawyer is one that will not only appreciate the client's wishes but also advise on those they have not though of. However these are thin on the ground. Trust law is indeed one of the, if not the most, complex areas of law that affects people personally. Whilst your story about the lawyer dying deliberately intestate may be apocryphal it does illustrate the point well. Since Down's Syndrome sufferers have a shorter life expectancy maybe a life trust that reverts to the other siblings is worth considering. HTH.

larkim

True ref life expectancy - but that may well be changing in this century as many of the reasons for short(er) life spans on average (not least the medical profession's compassion towards people with DS) are definitely improving.

Thanks for the help!!

SevenOfNine

This will give you a very basic outline of trusts types. Might help to avoid misinformation, the word 'trust' has different variations depending on which one. The rules for them aren't 'one size fits all'.

https://www.gov.uk/trusts-taxes/types-of-trust

As has been suggested, leaving half the house to the kids, with surviving spouse a life interest, may not be quite as simple a solution as first appears.

Eg, one of you dies, offspring inherit that share of the house between them (spouse has the rest & life interest). But what are the conditions if one (or more) of your offspring subsequently dies themselves, or is married & subsequently divorces?

They own a portion of that house, albeit cannot 'collect' because of the (fair) life interest surviving spouse has. But that doesn't mean the value of their share won't be taken into account in any divorce settlement, or if they die it could pass to another outside of your bloodline through intestate or even their own Will. Just little pebbles our STEP solicitor threw into the pond!

Good idea to get a flavour of what's out there first, it helps with what questions you may need to ask a suitable legal professional. Ours advised making a comprehensive list of exactly what it was we wanted to achieve (then made us think twice about bits of it).

Be mindful of the new Property Nil Rate Band because that does not necessarily now sit well with the words 'house' & 'trust'.

GwylimT

We are in a similar situation, three children, one is severly disabled. The money from the sale of our two properies will go in a trust fund to go towards his care costs when we are gone, if we pop our clogs before he is 21 the lump sum from our pensions will also go into the trust fund to help pay for his care.

Our other two can share whatever we have in the bank and the sale of any objects/jewellery in the house.

Newly_retired

My situation is very different from yours, but there is a relevant similarity.
I have a sister who is mentally disabled.
After my father died, leaving everything to my mum, she took advice about making a will in order to divide her estate between her two grown up children. When she died, I received my inheritance in full, but for my sister there is a trust which pays her an income. When she dies, her adult children will inherit, and though they have to wait, eventually they will do well out of it, because the trust investment is doing very well. In fact the capital is scarcely being eroded.

The point is, the pay out to my sister( I can't recall if it is monthly or annually) was deliberately kept small as she cannot manage money. She would make silly purchases or give it away inappropriately.

As it happens, my sister had a major mental health crisis after my parents died, and had to be sectioned. After she became stable again, she returned to the care home, and her costs are fully covered by the NHS.
So in fact, she doesn't need any extra money.
Don't get me wrong, I think my mother was well advised, as we were both treated fairly, and grandchildren will all benefit eventually.
Ironically, my parents were poor all their lives. Their estate was the value of the house, pension pay outs and life insurance. Their savings were about £20K, some of which was used for funerals, house selling costs and solicitors fees, and care costs for my mum, who survived dad by a few months.

Sorry for the long story. Not quite the same , I know, but there may be some relevant points for you to consider in your circumstances. I hope you get good advice and make some good decisions.

larkim

That is actually very relevant. I used to work (in a non-care role) in a learning disability care organisation. There were numerous service users whose parents had predeceased them who were in potential receipt of capital / income from discretionary trusts of varying sorts, but for whom for all practical purposes they had very little want or need of money.

In fully funded NHS care provision (as is the case for a period post-Sectioning, and might be the case in other situations where the disability falls into the NHS hands for continuing care rather than social care provided for by local authorities) even if the offspring inherit the whole sum outright, the NHS can't "go after" the funds ("Free at the point of delivery" etc etc).

If the provision is social care, then the local authority is obliged to try to recover costs from the service user if their income / capital exceeds certain thresholds, but clearly discretionary trusts can go some way (under current law - no guarantees about the future) to protecting all / most of that inheritance. But if someone is being provided by social care services and their needs are being met, there ought to be relatively little "need" for substantial sums of cash. My experience was that, beyond supporting the cost of holidays and entertainment (e.g. a big TV, sky subscription if they are a football fan etc etc) it was often quite hard for the care providers to find good uses of the inherited monies. You could make a case for a substantially "nicer" and more luxurious care provision, but unless the pot of inheritance was very substantial, that sort of provision could very rapidly eat up the entire income / capital, especially if the recipient had expectations of a relatively normal life-span and so it was often in the best interests of the recipient not to create turmoil in their lives by moving care provider, only to be "downgraded" later.

I think my issue with the quantum of any provision is that at age 14 we currently don't know what the adult life provision for my offspring will be. When they are 24 etc we'll understand it better, and can then probably make a better and more appropriate provision for their likely future adult financial needs than we can today.

Perhaps "not knowing" means we should be ultra-cautious - make a disproportionate provision for them now, with the expectation that we'll change that as circumstances change in the future with a hope that we'll be able the equalise the entitlement across their siblings if at all possible.