Disability will

Relatives of people with disabilities give a lot of thought to the best possible care for their relative if they are no longer able to be there for them. Unfortunately, arrangements are often made with the aim of supposedly providing security which, despite the best intentions, do not benefit the relative with a disability.

However, this can be prevented by drawing up a so-called ‘disabled person’s will’.

Why does a person with a disability hardly benefit from a ‘normal’ inheritance?

People with disabilities have hardly any advantages in the case of a ‘normal’ inheritance. This is because the social welfare organisation can often access the inherited assets because the basic needs of a person with a disability are usually covered by social welfare. If a person with a disability inherits assets or receives their own assets as a gift, these assets must first be utilised to a large extent (also retroactively) before the social welfare provider (again) pays for the costs (so-called ‘subordination of social welfare’).

Due to the often considerable costs for the home and care, the inherited/gifted assets are quickly used up in such cases. It is only in the case of inheritances that are below the limit for ‘protected assets’ under social law that social welfare organisations do not have access to these assets.

How does a disability-friendly will work?

In a disabled person’s will, the disabled relative – usually their own child – does receive a share of the inheritance. However, the inherited assets form a separate estate within the inheritance (‘special assets’), which is administered by an executor.

For this purpose, the disabled relative merely becomes a ‘pre-heir’ (temporary heir). Upon his or her death, the inherited assets (‘prior inheritance’) are transferred to a ‘subsequent heir’ to be determined by the testator (e.g. siblings of the disabled person). This means that the disabled person has no access to the assets from the prior inheritance.

At the same time, the executor is instructed in the will to use the current income from the assets in favour of the person in need. The income from the inheritance can then be used for purposes specified in the will, for example: for excursions, hobbies, birthday parties or medication/therapy not paid for by health insurance, etc.

If the will is optimised, the basic care of the disabled relative will continue to be covered by state benefits. The assets administered by the executor of the will do not have to be used for basic needs, but can also be used for the specified purposes in favour of the disabled relative.

The disabled person’s will: useful in several respects

In addition to the financial benefits for relatives with disabilities, a disability-friendly will also has a psychological effect: the ongoing income from the inheritance gives the disabled relative a sense of independence, as they are not dependent on financial support from others for their leisure activities, for example.

For this to succeed, however, a good relationship of trust with the executor of the will is of great importance. In this respect, a close relative (e.g. sibling) or another important person should be appointed as executor if possible.

Disability wills & executors: What rights and obligations does the executor have?

If an executor has been appointed in a disabled person’s will, he or she administers the pre-inheritance. In principle, the executor may only access current income from the inheritance. Only in certain exceptional cases can the possibility be granted to also have recourse to the assets of the pre-inheritance. This may be the case, for example, if the person with a disability has the opportunity to purchase a flat in a disability-friendly facility.

However, careful consideration must be given when drafting a will as to when the assets may be touched, as the social welfare provider may access these assets (or the item acquired with them) if the will is drafted incorrectly.

Why is it so important to draw up a will for a disabled person?

Drawing up a will is extremely important for people with disabilities and their relatives. This is because if the will is drawn up ‘incorrectly’ – even if the person in need is disinherited (!) – the social welfare organisation can often access the inheritance.

This is because close relatives, such as children, are generally entitled to the so-called ‘compulsory portion’ even in the event of partial or complete disinheritance. The social welfare organisation can also ‘transfer’ this compulsory portion to itself against the will of the disabled person and assert it against the heirs.

Against this backdrop, it is generally not only necessary to draw up a disabled person’s will in order to create added value for the disabled relative. A disabled person’s will also protects the other heirs, such as siblings, from the social welfare provider asserting payment claims due to inheritance or compulsory portion rights.

Disability will with the support of a lawyer

As there are many pitfalls in preventing the social welfare provider from accessing the inheritance, it is essential to seek advice from an expert lawyer when drawing up a will for a disabled person.

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