Testament to the benefit of disabled
Since every family and financial situation is different, there is – opposite to some opinion – no standard solution. The legal problems of setting up a last will to the benefit of disabled people are so plentyful that it cannot be drawn up “off the peg” or on the basis of formulars. The legal adjustments and subtleties require competence in detail concerning inheritance and family law, especially when it comes to
- the determination of the compulsory portion in connection with the applicable law concerning matrimonial property law in Germany or abroad or the consideration of donation agreements,
- the application of foreign inheritance law,
- related questions of insurance law concerning accident or life insurance policies,
- related issues of company law or
- calculating the accruing (inheritance) tax .
It is therefore not advisable to “tackle” this topic without expert help. Professional competence is guaranteed by the title of “Certified specialist in inheritance law” awarded by the governement, which is not comparable with all the the self-assessments as a “specialist for …”.
Costs of drafting a will
Quality has a price, but is also worth its money, especially when it comes to the question of whether a will is valid when it comes to its use. Since these wills concern the non-profit sector (as well as many other activities of mine), I calculate my fees in this sector on a basis of 1/3 of the legal fees.
Who bears the costs of a disabled child?
Parents of handicapped children and other relatives are usually faced with the question of how they should structure their last will in order to support the child concerned as far as possible beyond the level of social welfare. Very often such disabled persons are accommodated externally with the result that the accruing costs are high and at first are covered by the government.
Can the government take recourse on the disabled person's inheritance?
Insofar as the child concerned has assets, the government takes recourse in order to recover the costs already disbursed. Asstes are – apart from small amounts – everything with value, in particular also an inheritance or a compulsory portion claim. When a close relative of the child dies, his inheritance is therefore regularly subject to governmental recourse.
Disinheritance of the disabled is not suitable
Parents often try to prevent the disabled child from receiving an inheritance by drafting a disinheritance decree. This, however, triggers compulsory portion claims, which the child can only waive in case of legal capacity and which are otherwise subject to the governmental recourse.
Protection by the so-called "Behindertentestament"
Under the term “testament to the benefit of disbled people”, there has been developed an effective possibility which limits the government’s access to the heirs assets and helps to preserve family assets. Family assets can thus enable the disabled child to live above the level of social welfare even after the death of his or her relatives.
Pre- and reversionary inheritance as part of the solution
If the will is drawn up correctly the disabled child should be appointed by the testator as a provisional heir. Another family member or a charitable institution may be appointed as reversionary heir of the disabled child. Under no circumstances the disabled child may be given a smaller portion than its compulsory portion. Otherwise, further claims in addition to the compulsory portion arise which endanger the intended protection of the family assets.
Execution of wills as another part of the solution
At the same time, the execution of the will is ordered in respect of the pre inheritance. The executor of the will is instructed to grant the handicapped child certain benefits from the estate. These should be those earnings which improve the quality of life of the disabled child. The precise definition of the executor’s powers and the scope of his duties represent an important milestone of the will. A family member or heir can be appointed as executor in order to prevent third parties outside the family from gaining an insight into the family’s financial circumstances.
Approval by the judicature
The Federal Court of Justice has already confirmed this type of testament to the benefit of disabled persons on several occasions by recognising that the testator has an “interest worth accepting”. The same applies to of the social courts, which have obliged the government to pay, even if a testament for disabled persons exists.