If you have a member of your family with complex disabilities, Wills and trusts are the best ways of making sure that, after you’ve gone, any money, possessions or property you leave to your family member will be safe and secure for their lifetime.
This page covers why you should write a Will, what it should include, using solicitors, the different types of trusts, appointing trustees, how trusts work and why they are probably in your family member’s best interests.
This information is based on the law in England and Wales.
On this page:
A Will is a legally binding document. By leaving a Will you can:
- Make clear what you want to happen to your estate (your property and money) after you die.
- Name your executors – the people you want to carry out your wishes.
- Name guardians – people you want to take health and social care decisions for your family member with complex disabilities while they’re under 18 years old. The guardians may also look after your family member.
- Name trustees – the people you want to manage property and money you have left to someone in a trust.
- Include a letter of wishes to guide your executors and trustees. Unlike a Will, a letter of wishes is not legally binding.
- Make gifts of money or property to friends.
- Leave money to charity.
- Make your funeral arrangements.
Why should I write a Will?
It’s important to leave a Will. If you die without making a Will, this is known as “dying intestate”.
The rules of intestacy, whether or not you have children, will then apply to your estate. These vary depending on:
- Where you live in the UK.
- Whether you are married or in a civil partnership.
- What joint ownership you have of property and/or money.
What should I include in my Will?
You should take into account:
- Your property, if you own it, and its likely value at the time you die.
- The value of the contents, particularly any special belongings or collections.
- Cars, bikes, computers and sports equipment.
- Bank and building society accounts.
- Other savings, e.g. National Savings Certificates, Premium Bond, ISAs.
- Other special items, e.g. family jewellery or things of sentimental value.
Do I have to use a solicitor?
No, you don’t have to have a solicitor to write your Will. However, as a Will is a legal document, it needs to be written and signed correctly.
If you have a family member with complex disabilities and need a trust, you will need qualified assistance.
How much does a solicitor cost?
A simple Will may cost a few hundred pounds, while one involving trusts, overseas properties or tax planning can cost much more.
Always be clear with a solicitor exactly what you want them to do and check what their fees will be before you get them to do any work.
Can I leave money or my property to someone with complex disabilities?
Leaving money or property to someone with complex disabilities isn’t always straightforward, especially if the person doesn’t have capacity to make decisions.
For example, it can affect their means-tested benefits.
So, it’s important to get expert advice.
One way round the complications of leaving money and property to your family member with complex disabilities is to set up a trust.
If you want to leave property or money to a family member with complex disabilities, a trust is an effective way to:
- Safeguard their social care funding and means-tested benefits.
- Protect them from risk of financial abuse.
- Support them if they need someone to manage their money.
A solicitor can help you to set up a trust and advise you on what to include in it.
Again, check with the solicitor what their fees will be for setting up a trust before you get them to do any work.
You can choose between two and four people as trustees to manage the money or property you are leaving to your family member with complex disabilities.
You can also say how you would like them to manage the trust.
Trustees can be:
- Family members and friends, but ask them if they are willing to do this before you see a solicitor.
- Professionals, such as solicitors or accountants, who will charge for their services.
Types of trust
Your solicitor will explain the types of trust to you in more detail and guide you to the right choice for you. These include:
A discretionary trust gives flexibility to use your assets (property and/or money) as and when needed to meet the needs of your family member with complex disabilities, without affecting means-tested benefits.
Disabled person’s trust
In some situations, a disabled person’s trust might be better to use if your family member with complex disabilities qualifies for this type of trust.
They can be named as the principal beneficiary and the trustees can ensure the trust supports them.
The rules relating to a disabled person’s trusts and taxation are complicated, so if you are considering one, talk to a solicitor first.
Putting a trust in your Will means it takes effect only after your death. For some types of assets such as pensions, death in service and life cover, this wouldn’t work.
A lifetime trust is a type of trust you can create while you’re still alive. It also gives you the flexibility of other people paying in. This could be a discretionary trust or a disabled person’s trust.
Always take specialist advice from a solicitor before setting up a lifetime trust.
This content was last reviewed in April 2023. We’ll review it again next year.