Trusts and inheritance

This information applies to England and Wales.

A trust can be a way of protecting money and property for a disabled relative or friend.

A trust could help support a disabled person if they:

• receive means-tested benefits, social care or housing
• might struggle to make decisions about money and property
• are at risk of financial abuse or might be pressured to give to others

A trust:

• gives legal control of the money or property in the trust to trustees
• can allow trustees to pay for things the disabled person wants or needs
• can be more tax-efficient, also called ‘protecting an inheritance’
• can stop money and property counting in means testing for benefits or social care, including supported living
• makes it harder to financially abuse someone

You would still pay the same amount of inheritance tax if you:

• put your money and property into a trust
• or give the money and property to the person directly

The 2 types of trust people use to support disabled people are:

• a disabled person’s trust if the disabled person is eligible
• or a discretionary trust 

Disabled person’s trust

You can put money and property into a trust for a disabled person. Trustees manage the trust. This could be:

• before you die
• after you die, through your will

This type of trust is good for managing:

• support with money
• risk of financial abuse
• means testing for benefits and support, including social care

This type of trust lasts for the lifetime of the disabled person. When they die, the money or property could pass to someone else that you choose.

For example, if you have 1 disabled child and 1 or more non-disabled children, the disabled person’s trust could pass down to the non-disabled children.

Making a will

Eligibility

You can set up a disabled person’s trust if the person is receiving a benefit that makes them eligible. This includes:

• Disability Living Allowance (DLA)
• Personal Independence Payment (PIP)

They do not have to receive these benefits, just be eligible. There are other benefits that can also mean that the disabled person is eligible as ‘a vulnerable beneficiary’.

Who qualifies as a vulnerable beneficiary? (GOV.UK)

You can also set up a disabled person’s trust if someone cannot manage their finances.

This could be because of a condition mentioned in the Mental Health Act 1983.

What is the Mental Health Act? (Mind)

Discretionary trust

For a discretionary trust, you need a group of beneficiaries. For example:

• other family members
• charities

You do not need to be recognised as a disabled person by law to benefit from a discretionary trust. This means they may be easier to set up. You will pay more tax on a discretionary trust compared to a disabled person’s trust.

How these trusts affect means-tested benefits, social care and housing

These trusts can:

• pay for things that a disabled person wants or needs
• give money directly to the disabled person for them to spend

Giving money directly to the disabled person could affect their means-tested benefits or social care.

It can be safer for trustees to agree to pay for things that the disabled person wants or needs because this will not affect means testing.

Paying for things a disabled person wants or needs

Trusts can be a good way of not affecting means testing because:

• money in a trust does not count towards income or savings limits
• trustees can still use the trust to pay for things the disabled person wants or needs

Giving money directly to the disabled person for them to spend

If trustees give the money directly to the disabled person, it counts towards income and savings.

Going over savings or income limits could affect the disabled person’s benefits and social care. Social care can include some sorts of housing, like supported living.

Trustees must:

• know what means-tested benefits and social care the disabled person receives
• check the savings and income limits for means testing

Savings and means-tested benefits

Trustees

Trustees decide how to use the money and property in a trust.

The trustees are in complete control. The person the trust is for (beneficiary) will have to ask the trustees for money or things they need.

Choose people who:

• understand the disabled person’s best interests
• are reliable

Trustees must communicate regularly and agree all decisions. They could be:

• an unpaid relative or friend who knows the disabled person
• a paid professional, which could be a trust corporation

You need between 2 and 4 people to be trustees. But a trust corporation can be a sole trustee.

A relative or friend

A relative or friend could be a good trustee if they: 

• know the disabled person
• understand what is important for their quality of life

A paid professional

A paid professional could be a:

• solicitor
• accountant
• trust corporation

You may choose to pay a professional trustee if:

• you want a trustee who knows how to manage a trust legally
• you do not have any family or friends that you think could manage a trust well

Talk to a solicitor to find out more about professional trustees.

Inheritance tax and other kinds of tax

You would still pay the same amount of inheritance tax on your money and property if you:

• put them into these type of trusts
• or give them directly to the disabled person

A trust, particularly a disabled person’s trust, can mean you pay less of other kinds of tax.

The amount of tax you pay depends on your circumstances. This can be called being ‘tax-efficient’.

Get legal advice. You would need to pay.

Find a solicitor (The Law Society)

Setting up a trust

A trust can be:

• part of a will
• separate from a will

Find a solicitor to prepare the legal documents to set up a trust.

Find a solicitor (The Law Society)

The documents will include a letter of wishes where you might say:

• how you’d like trustees to help pay for the disabled person’s care
• how the money can improve the disabled person’s quality of life
• what you’d like trustees to pay for or buy for the disabled person

You can also use a letter of wishes  to explain other aspects of your will.

A trust as part of a will

A trust in a will can only:

• be used for the money or property the will covers
• begin working when you die

A trust separate from a will

A trust should be separate from the will if you have:

• a pension
• death in service benefits
• life cover

This is because they cannot be included in a will.

You would also have a trust separate from your will if other people want to contribute to the trust.

For example, if this is being set up for a disabled child, both parents can pay into a single trust.

Financial abuse

Trusts can make it harder for other people to financially abuse a disabled person. This is because trustees need to approve purchases that the disabled person wants.

Financial abuse includes:

• stealing
• ‘mate crime’

Mate crime is when someone says they are your friend but takes advantage of you. For example, asking you for money or to buy them things.

Mate and hate crime (Mencap)

Other ways to support a disabled person after you die

These trusts are a good way to support a disabled person to make financial decisions after you die. Other ways include:

• social care support from the local authority
• managing benefits (an appointee)
• making all financial decisions (a deputy)

Social care support from the local authority

Legally, local authorities must pay for eligible social care. This could leave more money in the trust to pay for other things that will improve the disabled person’s quality of life.

Ask the local authority for a social care assessment if they have not done this yet.

Social care assessments have 2 parts:

• a needs assessment
• a financial assessment, which looks at savings and income (money and property in these trusts do not count)

How to get social care

You can challenge a social care assessment if you think it does not meet eligible outcomes. For example, not being able to:

• use your home safely
• maintain a habitable home
• develop and maintain personal relationships
• access and engage in work, training, educational volunteering

You can also challenge a social care assessment if the needs of the disabled person have changed.

Challenging your social care assessment

Managing benefits (an appointee)

If you think the disabled person cannot manage their own benefits, someone can apply to the Department for Work and Pensions (DWP) to become an appointee. An appointee manages all the meetings and paperwork around someone’s benefits.

Becoming an appointee

Making all financial decisions (a deputy)

A deputy is someone the Court appoints to make decisions for someone who cannot make decisions for themselves. This is called ‘mental capacity’.

Mental capacity means being able to make a decision because you can:

• understand information
• remember information
• explain your decisions
• understand the consequences

The Mental Capacity Act (Mencap)

If the disabled person does not have mental capacity, get advice about deputies.

Depending on the circumstances, a deputy can have the right to make decisions on:

• finances and property
• where someone lives
• medical treatment and how someone is looked after

Deputies: make decisions for someone who lacks capacity (GOV.UK) 

Compensation payments

Compensation payments are dealt with differently. Pay for legal advice.

Find a solicitor (The Law Society)

With thanks to Renaissance Legal, our subject experts for this information.