Including children with a disability in your Will

If you’re a parent of a child with a disability and you’re writing your Will, you’ll need to think about setting them up for the future. This will include their physical needs, accommodation or living arrangements, support services, social interactions and activities, future healthcare plans and so on. 

Not sure where to even begin? Here are some thought starters and tips to help you set your family up for when *that* time comes.

Issues with leaving the majority of the estate to other siblings

Sometimes, parents pass the majority of the Estate to other siblings who do not have special needs or disabilities. Along with the inheritance, they may leave instructions for them to take care of the needs of their sibling.

It’s generally advised not to do this, because, well, hypothetically, siblings could die before their sibling who is living with a disability, potentially leaving them without any assets at all. In other cases, some siblings unfortunately might not act in the best interest of the other.

Alternatively, consider a Testamentary Trust

It’s not the best idea for property and other assets to be left to a beneficiary with special needs, as in some cases, they won’t have the capacity to manage them.

There are other options, like Testamentary Trusts, that allow parents to appoint ‘trustees’ to use the property for the purposes outlined in the Will. It’s a smart idea to appoint multiple trustees, so the onus doesn’t fall on one person. You could ask one of your other children, a solicitor or trustee company, an ‘advocate’ of the person living with a disability or a family friend, for example. (Alternatively, you can also appoint the Public Trustee of a private trustee company, but the downside to this is having to pay fees).

Testamentary Trusts are a good alternative to directly leaving property to a person who may not be able to manage it. You can learn more about this kind of trust here.

Special Disability Trusts

In this case, it’s generally advised to create a Special Disability Trust, which is a Federal Government program that allows family and guardians to provide for the future of family members living with a severe physical, intellectual, psychiatric or behavioural disability or medical condition.

All assets that make income can be assigned to this type of trust, like cash, shares, managed funds and even rental properties. It can also include assets that provide accommodation and everyday care for the child, like a house, a wheelchair or a modified vehicle.

Wrap up

First of all, it’s great that you’re in planning mode. Seriously – hats off to you. It’s always a good idea to get all your ducks in a row early, to ensure that your children are set up for the future.

Remember that there is no one-size-fits-all approach to this, and you have plenty of options up your sleeve. But, it's unlikely that an online Will will be suitable for you. Instead, we recommend speaking with a lawyer in order to draft a Will that's tailored to your circumstances.

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice