Our son has learning difficulties. How do we protect him in our will?

Ian Smart
21 June 2019

Q

Both my husband and I are in our 60s. We would like an outline of the steps we need to take to ensure our son, who lives with us and has mild learning difficulties, is protected financially when we are no longer around.

We haven’t made a will yet. Do we get financial advice first before making a will? Would it be a good idea to set up some form of trust for him and how do we do this? Our son is partially dependent on us, he works part-time and does not receive any benefits. Would a trust cause problems for him if he had to claim benefits in the future?

From
LR/East Yorkshire

A

Making a will is a sensible step for anyone, irrespective of their circumstances because it makes sure that your wishes regarding who should benefit from your estate are fulfilled rather than relying on the law to decide.

In your circumstances, it is definitely worth getting advice on making a will to make sure your son’s needs are met.

When doing this, it is important to take into account your future need to be able to access your savings as well as your desire to look after your son. If you feel your son wouldn’t be capable of handling his financial affairs, a trust may be appropriate. You should discuss whether to incorporate this into your will so that it only takes effect after your death, or to set it up now potentially reducing any inheritance tax payable after your death. 

For most people, an inheritance could affect their ability to claim means-tested benefits, but non-means-tested benefits are not affected. There is a special kind of trust for people with disabilities that protects the capital from means testing, known as a disabled person’s trust.

Even though your son may not be claiming benefits currently, I would recommend getting professional advice to find out whether he would be eligible for such a trust, because this could make a big difference to the benefits and tax treatment of his inheritance.