A well-written Will resolve many issues of succession planning. Without one, there are higher probabilities of disputes in distribution. The need for a Will is even more important for families with special needs children. Besides wealth distribution, the Will needs to address different issues to remove ambiguity for a secure future of the child.
Spell It Out
If there are siblings then one needs a lifetime support. The parents would wish to allocate a higher share to the special need child simply because the child cannot manage own affairs. There are chances of disputes if clear reasons are not spelled out in the Will or siblings do not agree. So it is important to build consensus and spell out the reasoning for any differential allocation.
Also, since the Will contains the provision for the special need child it is necessary that this document mentions the exact nature of the disability. It can contain a statement such as “My Daughter had limited academic progress and having Mental Retardation is in need of special attention and support”. This will help others to know the nature of the disability.
Need for Guardian
A guardian is an important person for a family with special needs children. He or she is the one who will manage the child affairs when parents are not there. Even in the eyes of law once the disabled child attains age 18 then he/she is independent. Any person, including parents, taking a decision on his/her behalf had to obtain the Guardianship legally. Hence, a guardian will be needed for managing the child affairs if parents are no more. Who will be the guardian and in what capacity he/she will manage the affairs of the child need to be spelled out clearly in the Will. Ideally, the Will should contain the provision for alternate guardian if the first choice is not available.
Sometimes it is not wise to appoint a single person as a guardian for both personal and financial affairs. You may wish to appoint a caretaker for the child who will manage personal affairs while the guardian manage the financial affairs. The Will should carry in detail the appointment and identity of the person as caretaker of the child.
There will be expenses when your child guardian or caretaker assumes the role. It may be travel expenses for the guardian or transportation expenses of the child to the individual. How these expenses will be paid and from where should be illustrated in the Will clearly. A good option is to allocate any assets such as life insurance to meet this objective.
For special needs children families, trust is the most viable option for child future. A private trust is a separate legal entity and so there are no individual owners. The child is designated as the beneficiary wherein he/she derives the benefit of all the income generated by the trust. To manage the assets the trust owns 2-3 trustees are appointed. Families, relatives or friends can gift the assets, movable or immovable, to the trust which is then utilized for child benefit. With a trust structure parents ensure that after them, the assets they have accumulated for their child does not go directly to him/her. Also, the assets are not owned by any individual but to an entity which works only for the child benefit.
All movable and immovable accumulated for the benefit of the child need to go to the trust when the parents are no more. The Will should carry the provision of bequeathing these assets to the trust. This will ensure that on the death of the parents, the legacy is utilized for funding the trust created for child future.
Mention Other Will
Many establishments such as defense have their own set up of Will drafting for their employees. However, in the case of special needs children families, a detailed Will is required for ensuring the effective distribution of the legacy towards trust created for the child. In such instance, the Will created at the employer level should be mentioned in the current Will.
There may be other consideration, based on your specific situation, which may emerge as you start writing your own Will. It is important to think more deeply what you want and how. Include the provisions you have thought in the Will so that the executor have clarity on your intentions. Having a Will is any day better than not having any; so rather than just thinking about it, start writing one.
The article first appeared om TheHinduBusinessline