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Wills and estates: Providing for those with special needs

Individuals planning their estates may have to take some special circumstances into consideration when doing so. When it comes to wills and estates in British Columbia, those who have beneficiaries with special needs must take particular care when fashioning estate planning documents. It may be that a loved one with special needs may need financial help long after a testator has died and a testator may wish to ensure that loved one is taken care of. 

A testator must also be careful that the family member's benefits aren't lost because of an inheritance, so often the best way of ensuring this is to set up what is known as a Henson trust. Most provinces will allow those who are receiving disability benefits to receive payments from third parties, which can be accomplished through a Henson trust. There are certain things to be taken into consideration when establishing such a trust: the age of the beneficiary, the value of the inheritance, the disability of the beneficiary and whether the beneficiary still wishes to receive disability benefits.

There are also tax considerations to take into account, since funds in most trusts are taxed at the highest rate allowable by law. So, if looking after a loved one with special needs is the goal, there might be other options such as a preferred beneficiary election. There are certain criteria which must be met for this option as well.

If a testator is concerned about caring for a loved one with special needs through wills and estates plans, his or her best option may be to discuss that desire with a British Columbia lawyer experienced in estate planning. A lawyer will be able to answer any questions regarding what might be the best options for individual circumstances. With the right legal information, a testator will be able to make the best and informed decisions.

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