Re-writing a will to the benefit of all our children

eddyinfreehold

This issue could just as easily be posted in Disability and Money Saving Issues but it is likely to have a wider audience here. I am interested in what other people think of both the morality and practicality of what I am considering below. There is no rush to act immediately.

My wife and I have wills that mirror each other exactly. We have three adult children, one of whom is significantly disabled with cerebral palsy, is a wheelchair user and sadly lacks the mental capacity to be responsible for her own care, welfare, financial or other issues. In spite of this she lives a reasonably happy life, has friends and is busily engaged with plenty of activity outside the home. She lives in the family home with us and we are her carers. Her siblings live and work at either end of the country. We are all five on good terms and the three offspring all get on well on the rare occasions they are together. My wife and I would fully trust the two to be able to manage the proper welfare of the third, even if from a distance.

Currently our mirror wills leave everything to the surviving spouse. Should both my wife and I die simultaneously, or the surviving spouse die later, all three children would receive an equal share of the Estate on our deaths. There are no other beneficiaries. The two able offspring are named as the sole Executors. They would receive their thirds absolutely. They would also be appointed as Trustees to manage the one third of the Estate left in Trust to their disabled sibling. That all seemed fair and straightforward at the time.

However, bearing in mind the growing pressures on Adult Social Care we read about almost daily, when we are gone it may be there are sudden demands on our disabled child's Estate. She receives DLA with the Higher level mobility award and has a letter granting her that status for life. I am the named keeper of her Wheelchair Ad apted vehicle on the Motability Scheme. She has a Local Authority administered Adult Care Package that allows us occasional respite. Because she is unable to work she also receives some Universal Credit which pays for some daycare and carer help from an agency.

It is our belief that should our daughter inherit a significant capital sum, there may be immediate demands from those administering any of the means tested benefits. They may even be lost altogether. It certainly presents our other two children as Trustees with an administrative headache they don't need. We are wondering what the opinions of others would be if we were to change our wills to leave half of the Estate to the two Trustees and our disabled daughter nothing. That would ensure any capital isn't either blown rapidly on eyewateringly expensive residential care or becomes necessary to replace a current benefit. It would still be possible for her siblings to 'gift' their sister a sum under the 7 year taxable gifts. we would trust them to do that absolutely.

We aren't great benefit scroungers and our daughter lives with us at our cost. I gave up my job to care for her many years ago and we are both now retired. Are we proposing something immoral or is this a reasonable way to proceed? I'm genuinely interested in what people think out there.

Keep_pedalling

I think that would be a terrible mistake to make. There are better options for beneficiaries with physical or mental disabilities. A trust is probable the best option, but you should take professional advice on what would be best for your child.

https://www.scope.org.uk/advice-and-support/leaving-money-to-disabled-person-in-will-trust/

theoretica

I think you need to talk to a family lawyer with experience in disability and trusts.  It might be possible and worth leaving 1/3 each to two of your children and 1/3 to a discretionary trust for 'your descendents' - or a Disabled Persons Trust.  They have their own complications, but would be worth exploring.

eg https://www.renaissancelegal.co.uk/blog/back-basicstrusts-disabled-vulnerable-people/

eddyinfreehold

Keep_pedalling, Theoretica ... thank you both. Yes, I fundamentally agree. I was going through all the usual pitfalls of trying to do the best for the beneficiary so left an open canvas. Really interested what other people out there thought too. Any further input appreciated.

Obviously we would want to leave an equal portion to all the beneficiaries, but not have one third consumed in a year or two on day to day care and nothing left for the rest of her life save what the Care/Benefit System offers.

There are obvious elephant traps I can think of with what I was suggesting....the two Trustee/Executors (currently single and independant) make poor life choices and marry avaricious divorcees with predatory step children, the two Trustee/Executors are themselves run over by a bus, or they fall out and refuse to act in union, or worse still take legal action against each other at great expense. All highly unlikely but possible.

What we are trying to do is work out a Trust that ring-fences the portion of our Estate that is left to the person in question that cannot be either expropriated by the local authority for day to day fees, mis-handled by corrupt carers and rests in the control of her trusted siblings/Trustees.

If there is no easy mechanism to resolve this, then going to Scope or other experienced bodies is obviously the route. I am still interested in canvassing other peoples opinion as to whether we are asking too much of the State and should be paying all we can ourselves? It strikes me that having sacrificed an awful lot of our life at our cost already, the State owes something back to our beneficiary. Thoughts?

RetSol

We are wondering what the opinions of others would be if we were to change our wills to leave half of the Estate to the two Trustees and our disabled daughter nothing. 

Nothing wrong with this, in principle.  It may be in the daughter's best interests in all the circumstances.  I have two friends with  disabled siblings whose parents have done this. 

But you need, as has been suggested, to get advice from a solicitor with expertise in this area. They will be able to set out all the options and help you come to an informed decision. 

And you will need to keep your wills under review as circumstances change. 

theoretica

eddyinfreehold said:

If there is no easy mechanism to resolve this, then going to Scope or other experienced bodies is obviously the route. I am still interested in canvassing other peoples opinion as to whether we are asking too much of the State and should be paying all we can ourselves? It strikes me that having sacrificed an awful lot of our life at our cost already, the State owes something back to our beneficiary. Thoughts?

My thought is this seems to be exactly what a Disabled Person Trust exists for - and by creating that type of trust the government were expressing a degree of willingness for this to happen.

As with all care there is the downside that the state will seek the cheapest solution, and it may not be possible to 'top up' in the way that would most benefit your daughter, but be an either state or private situation.  But with a trust you keep the options open.  Another reason to identify a lawyer experienced in this - to help try to get appropriate state care.

Gold_Shogun

@ eddyinfreehold

Hi,
I set up a similar Will-Trust for my Mum's Grandchildren in her Will many years ago.

Myself & my two brothers (= ALL of my Mum's kids, then middle-agedish) mutually decided that we were all "big enough & ugly enough" to look after ourselves and we didn't want or need her money, so we advised her to leave her entire estate in equal shares all her Grandkids (one of whom was disabled, and ALL of them were minors at the time me making her Will & were still minors upon her subsequent death).

I offer the following tips and thoughts which you may hopefully find useful in your considerations.

***  TWO Executors ONLY is not generally a good choice as it allows for the distinct possibility of a future 50/50 loggerhead-disagreement as to "a proposed action" .... It is much better for the long term to EITHER have (a) a Third "Tie Breaker Executor" that ONLY comes into play as the Deciding-Vote IF the Two Primary Executors cannot amicably agree (prevents Court-Fights), OR (b) always have an ODD number of Executors with a "Simple Majority" needed for anything but small Decisions. .......... I suspect (a) may be more suitable for your wishes.

*** In EITHER of the above cases, it would be a good idea for you+partner to nominate "Alternative Backup" Executors to your Primary-Set, in case of their death, resignation, or incapscity .... In my mums case, I wrote in a clause requiring each Executor to provide a "List of Three Substitutes in preferential order" as their FIRST Duty upon appointment.

*** It would be VERY unwise to effectively give or split your disabled child's One-Third Share inheritence amongst or between you other two children for reasons that have NOTHING to do with how much you may personally trust them, and it would likewise be VERY unwise (for THEIR OWN Protection) for your other kids to consider accepting such an arrangement ..... You have mentioned some of the possible problems above in your later posts (such as potentially vulture-style partners/stepkids/etc) ..... However, there arer MANY other potential pitfalls whcih could also have a negative effect on your other other kids such as, for example, preventing them from being able to claim benefits (due to Capital Limits) should they need it OR possible DWP "Deprivation Of Capital" charges/claims OR Potential Loss of Higher-Interest Savings-Accounts as the assets wouldn't be in your lass's name OR potential HMRC Over-Taxation of the other kid's income/assets ..... AND/OR MANY, MANY, MORE

*** A WRITTEN TRUST Document/Set-Of-Clauses (which I specified and included as part of my Mum's Will) tends to make you fairly bulletproof from future interference from family-vultures ++ governament-thievery ++ official-jobsworths ++ court-challenges, etc ..... as it gets "Officially & Formally Stamped & (effectively & legally) Court Approved" as part & side effect of the Probate/Confirmation process, which scares most Richard-Heads from arguing against or challenging it.

*** An important point for your Trust would be that "The Trustees shall have SOLE AND WHOLLY DISCRETIONARY Powers to operate the Trust and apply all the assets & income as they see fit for the sole benefit of the Beneficiary" ..... as it effectively protects all the trust assets from being vultured, stolen, or hijacked by Councils/Care-Homes/DWP/Etc as the Trust-Assets would not legally belong to your lass and she couldn't be forced to sign/hand it over to said vultures, BUT the Trustees could, for example, Voluntarily choose to "Top-Up" the basic cheap-state care fees to a higher level to enhance your lass's life with a better-quality care-home and/or care.

*** Watch out for Vultures/Shysters trying to rip you off mega-bucks for (BS) "Specialist Legal Fees or Charges" ... It's not rocket-science and is mainly common sense for you to think about and Layout-on-paper a rough draft of WHAT suits YOUR family (which you seem to have from your posts I've read herein), and any half-competent person/lawyer should have no real problems putting into Legalese IF needed.

There are no doubt points I've forgotten, but (a) I'm getting brain-dead now, and (b) this post is getting into "War & Peace Length" territory. ... I MAY add more later IF I can.

Cheers
Bob

sammyjammy

Where will your daughter live when you are both gone?

eddyinfreehold

Thank you everybody...Bob especially for showing a pathway....

SammyJammy....good question. At the moment she lives with us because there is no readily available Assisted Living accommodation....the bottom line is if we were to be run over by a bus tomorrow she would probably remain in the home with carers coming in as it is fully adapted for a wheelchair user (we built on and installed a lift about 12 years ago). She would have to relocate when appropriate accommodation becomes available and our property has to be sold. She is not a priority for the local authority at present. She would become so on our demise.

RetSol

Where will your daughter live when you are both gone?

Hello again, @eddyinfreehold.  This seems to me to be the crux of the matter.  Together with the inevitable aging of the parents with the possibility of one dying and the survivor being unable to manage.

I think that you are very wise to be thinking now about the interests of all your children in the long-term.  You are clearly very loving parents. Your wills are simply one element of the bigger picture. 

All the best with making the decisions which are right for you and your family. 

Keep_pedalling

Gold_Shogun said:

@ eddyinfreehold

Hi,
I set up a similar Will-Trust for my Mum's Grandchildren in her Will many years ago.

Myself & my two brothers (= ALL of my Mum's kids, then middle-agedish) mutually decided that we were all "big enough & ugly enough" to look after ourselves and we didn't want or need her money, so we advised her to leave her entire estate in equal shares all her Grandkids (one of whom was disabled, and ALL of them were minors at the time me making her Will & were still minors upon her subsequent death).

I offer the following tips and thoughts which you may hopefully find useful in your considerations.

***  TWO Executors ONLY is not generally a good choice as it allows for the distinct possibility of a future 50/50 loggerhead-disagreement as to "a proposed action" .... It is much better for the long term to EITHER have (a) a Third "Tie Breaker Executor" that ONLY comes into play as the Deciding-Vote IF the Two Primary Executors cannot amicably agree (prevents Court-Fights), OR (b) always have an ODD number of Executors with a "Simple Majority" needed for anything but small Decisions. .......... I suspect (a) may be more suitable for your wishes.

Cheers
Bob

You raise some good points but I don’t think having an odd number of executors is necessary to avoid a conflict. However many you have, they have to work together and majority rule does not really help when one executor decides to put a spanner in the works. You could even say you have a 50% increase of it happening by going from 2 to 3. 

Chose your executors well, but if you have 2 children who you suspect or know won’t work well together, think about appoint one as main and the other as backup.