Wills and Trusts. A guide to leaving money to someone with a learning disability. Information from ENABLE Scotland. 1 P a g e

Transcription

1 Wills and Trusts A guide to leaving money to someone with a learning disability Information from ENABLE Scotland 1 P a g e

2 Contents Page Section 1: Making a Will Why make a Will? 3 What do I need to think about before writing or updating my Will? 3 Leaving money to a person with a learning disability 4 Frequently asked questions about Wills 4 Section 2: Setting up a Trust Why set up a trust? 9 Who can set up a trust? 9 When should you set up a trust? 9 What type of trust should be used? 10 Discretionary trusts and means-tested benefits 11 What can be put in a trust and how much? 12 What can a trust be used for? 12 Who will be the trustees? 13 What duties and responsibilities does a trustee have? 13 How do I set up a trust? 14 What happens to any money left in the trust? 14 Section 3: Finding a Solicitor Can ENABLE Scotland recommend a solicitor? What to consider when choosing a solicitor How much will it cost to make a Will? Section 4: ENABLE Trustee Service Limited Section 5: Key words 18 Section 6: Further help 19 This guide has been written in response to the many queries ENABLE Scotland receives from parents who want to leave money to benefit a son or daughter with a learning disability but are not sure how to go about it. Everyone s circumstances will be different and this guide is intended as a general introduction to common problems and questions which face parents. You can use it as a starting point for considering the factors which might affect your family. Legal terms are used throughout this guide. Turn to page 18 for an explanation of their meaning. 2 P a g e

3 Section 1: Making a Will Why make a Will? It is important for everyone to make a Will. Making a Will ensures that your assets go to the people you choose and according to your wishes after your death. This is especially important if you want to provide for the financial future of a family member or a friend with a learning disability. Families tell us that they have not made a Will because they: think it s too complicated and expensive; think they don t have much money to pass on; do not realise the consequences of not making a Will; assume that their family will do the right thing; find it difficult to think about the future; just don t get round to it. If you do not make a Will, you will have no control over how your money and possessions (your estate ) will be shared out after your death. This might affect someone with a learning disability in your family in the following ways: they may not get the things that you want them to have; the money you leave may be paid to them directly even if they are unable to manage it; others may try to take advantage of them because of their money; it may affect their entitlement to means-tested state benefits and their financial contribution towards community care costs; money may be lost in inheritance tax which could have been reduced with some careful planning. By writing a Will and taking some extra simple steps to set up a trust, you can make sure the people you care about get the right financial support and protection when you die. What do I need to think about before writing or updating my Will? There are a number of things you need to think about before making your Will. Make a rough list of everything you own this includes all your assets and liabilities and their value. Think about who you would like to benefit from your Will (your beneficiaries ) and what you would like to give them. You may want to think about family members, friends and charities. You can make specific gifts such as your house or jewellery or you can leave a sum or share of money. 3 P a g e

4 Think about who you would like to be the executor of your Will. This is the person you officially appoint to make sure that the wishes in your Will are carried out. If your child or children are under 16, think about who you would like to look after them and be their guardian after your death. You cannot appoint a guardian in your Will if your child is over 16, even if they have a learning disability. Think about whether you need to set up a trust for a beneficiary with a learning disability. A trust is a legal arrangement that allows a person or an organisation to look after someone else s money. We talk about trusts in more detail later in this guide. Leaving money to a person with a learning disability If your son or daughter has a learning disability, you may have certain worries about leaving money to them in your Will. Here are some common worries and questions. It may affect my child s entitlement to means-tested benefits Most adults who have a learning disability receive some form of state benefits. Receiving even a moderate legacy may mean that they will lose their entitlement to some means-tested benefits, including Income Support and Housing Benefit. In addition, your son or daughter may have to contribute towards their community care costs. Your child s inheritance will be quickly used up if they lose their benefits and have to use their inheritance to pay for everyday living expenses or care. Remember that even if your child is not receiving benefits or community care services at the moment this may change in the future as their needs change. It may make my child vulnerable to financial abuse Ask yourself whether your son or daughter would be able to manage a large sum of money without help. Even if they can manage smaller sums, a significant inheritance may leave them vulnerable to financial abuse by others. It might also mean that another relative or the local authority have to apply for Financial Guardianship to manage the money on behalf of your son or daughter. Frequently asked questions about Wills Who has a right to my money? A lot of people think that they can do what they want with the money in their Will. This is not strictly true. A surviving spouse or civil partner and children are entitled to 4 P a g e

5 certain legal rights out of your moveable estate. This includes money, shares, cars, furniture and jewellery. Your surviving spouse or civil partner is entitled to one-third of your moveable estate if you left children or grandchildren. Your surviving spouse or civil partner is entitled to one-half of your moveable estate if you left no children or grandchildren. Your children are collectively entitled to one-third of your moveable estate if you left a spouse or civil partner. Your children are collectively entitled to one-half of your moveable estate if you left no spouse or civil partner. Each child has an equal claim. It is not possible in Scotland to disinherit your child or children and leave all your money to someone else. If you do not make provision for your children in your Will, then they (or someone acting on their behalf) can claim their legal rights. It is possible that the Department of Work and Pensions or the local authority may try to get a Financial Guardian appointed who would claim these rights on behalf of any person who lacks capacity and who has been denied their legal rights to a share of their parent s estate. How do I decide how much to leave to each of my children? You will need to decide how much of your estate you would like to leave to each of your children. You may decide that the fairest thing to do is to divide your estate equally among your children. Alternatively you might prefer to think about what each child actually needs and divide your estate accordingly. In some cases, other children may be relatively well off in their own right and parents will choose to leave more to their son or daughter who has a learning disability. In other cases, their son or daughter may be managing well on benefits and be less likely to need funds than other children. You could set up a trust for your child who has a learning disability and provide in your Will for your other children to receive their inheritance directly. Another possibility is to create a discretionary trust to deal with the whole of your estate and to rely on the trustees of your trust to make payments to all of your children after your death, depending on their circumstances and needs at the time. There are no right or wrong answers about how much to leave and every family will be different. What is important in all cases is that you are supported to make decisions about the future that you feel comfortable and happy with. 5 P a g e

6 "Should I leave the money to another relative or friend to look after?" You may decide to leave your child's share to someone else to look after, for example your other children. However, a relative does not automatically have the right to manage another adult's money. Normally, a person would only have this right if they had a Power of Attorney or Guardianship Order. Also, it can sometimes be difficult for a person to fulfil their role, perhaps if they move away from your child or their own personal circumstances change. Further, the money may not be protected if the person divorces or dies without making a Will which provides for your child. And finally, as noted above your children have a legal right to a share of your estate so you cannot just give their share to someone else. Can I leave a house in my Will? The simple answer is Yes, you can leave your house to whomever you want. It does not form part of your children s legal rights. Often people want to ensure that their son or daughter can continue living in the family home and will leave the house to their son or daughter with a learning disability. In some cases the child can be given a liferent. This means they have the legal right to stay in the house for as long as they are able even if some else inherits and owns the house. So it would be possible to leave your house equally to all your children but give your son or daughter the right to stay there for the rest of their live. Of course this would mean that your other children could not share in the value of the house until your son or daughter no longer requires it. It is also possible to put the property into a trust. This would mean that your child could stay in the house but that it would be managed by your chosen trustees. It is important to take legal advice on the best option for you and your family. Think about how your other children will be provided for if the house is not to be sold, how care will be provided, whether there is an outstanding mortgage and how bills and maintenance of the house will be paid. You also need to think about whether your son or daughter could make decisions about the house by themselves or whether an Attorney or Guardian would be needed to make decisions on their behalf. Another decision is who will get the house when your son or daughter no longer needs it. Is there anything I can t do in my Will? It is important to know what your Will cannot do and to take legal advice on any issues which still need to be sorted out. Your Will cannot: Control jointly owned property where there is a survivorship destination. For example, the title deeds to your house may state that your half share automatically passes to your surviving spouse on your death. Survivorship 6 P a g e

7 destinations are less common now but your solicitor should check how your property is owned and advise you accordingly. Say who you would like to be your son or daughter s guardian after you die unless they are aged under 16. If your son or daughter is over 16 you should consider whether there is another relative or family friend who might need the legal right to make decisions on behalf of your son or daughter if they are unable to make decisions themselves. For example, decisions about where they live, what care they receive and how their money is to be managed. Depending on the circumstances a trusted person could apply to the court for a Guardianship Order. Control who will get the proceeds of some life insurance policies, pensions or death-in-service payments. For example, you may receive a death-in-service benefit payment from your employer. This will not necessarily form part of your estate and may just pay our automatically on your death. Normally there is a nominations form which you can complete to indicate who you would like to receive the benefit. What is the best way to make a Will? Visit a solicitor who has experience in Wills and Trusts. Some people are tempted to use a pre-printed form from a shop or off the internet. Although a cheaper option in the short term this is not recommended, particularly where you are making provision for a beneficiary who has a disability. The pre-printed forms are often based on English law and will not take account of your individual circumstances, leading to complications and expense later on. There are some basic legal requirements that are needed to make a Will and doing it yourself will mean this rests on your shoulders. What happens after I have made my Will? Once you have made your Will, it is important to review it regularly. Changes in your life such as marriage, divorce, having another child and changes in financial circumstances can all affect your Will. Also, you can change your Will at any time to take account of changed needs or wishes. You can make small alterations to an existing Will by adding an additional written instruction (a codicil ). You need to keep your Will somewhere safe and let your executors know where it is. It s a good idea to keep the original Will at your solicitor s office or at your bank, and to have an extra copy at home. 7 P a g e

8 Apart from my Will is there anything else I should be thinking about? If you are a near relative of a disabled person, it is important to consider what would happen on your death to the money from any insurance policies. Will any money go directly to the disabled person, or can it be put into a trust? How do you intend the money to be used? Remember, you may have life insurance as part of something else, such as an endowment mortgage or a pension plan. Next steps Complete ENABLE Scotland s Making a Will workbook to help you think about your wishes. Read ENABLE Scotland s Introduction to the Adults with Incapacity Act to learn more about guardianship if your son or daughter is over P a g e

9 Section 2: Setting up a trust Setting up a discretionary Trust can help to avoid the problems outlined above. A Trust is simply a legal arrangement where money or property is managed by people (the trustees ) for the benefit of others (the beneficiaries ). Why set up a trust? Trusts are often set up to provide for a vulnerable beneficiary. The most common reasons are: To protect a person s entitlement to means-tested benefits; To protect against the risk of financial abuse; To help manage large sums of money that someone might find difficult to manage. Who can set up a trust? The trust can be set up by anyone who wishes to set aside funds to be used for someone s benefit. The most common scenario is a parent setting up a trust in their Will for the benefit of their son or daughter but it is important when planning for the future to think about the whole family. Your trust can be set up to allow further sums of money or property to be paid into it. Other relatives may wish to say in their Wills that an inheritance for your child should be paid directly into the existing trust. One example would be a parent setting up a trust during their lifetime with a nominal amount of money, say 10. Grandparents could then write a Will and direct any inheritance for their disabled grandchild into the existing trust. This can be better than lots of different trusts operating or inheritance being received directly. It is also possible for someone to set up a trust fund for herself or himself. This can be useful if they want help to manage the money. In this case, the money in the trust will be treated as belonging to the beneficiary and will be taken into account when assessing entitlement to means-tested benefits and contribution towards community care services. When should you set up a trust? You can set up a trust in a trust deed while you are alive. Another option is to include a trust as part of your Will. This means the trust will only start after your death. 9 P a g e

10 You may wish to set up a trust during your lifetime for the following reasons: To potentially reduce your inheritance tax bill; To accumulate savings; To receive inheritance for your son or daughter from other relatives or friends. You may wish to set up a trust in your Will for the following reasons: The only money going into the trust is an inheritance from you; Inheritance tax planning is not a significant consideration for you. What type of trust should be set up? Although discretionary trusts are often suitable for people with a learning disability, there are various types of trust which can be used for different purposes. You will need to discuss your situation and circumstances with a solicitor, who will advise you on all the options available to you. The most common types of trust used for children and adults who have learning disabilities discretionary trusts or a disabled person s trusts. Discretionary trusts It is possible to put money into a discretionary trust for someone. Key points to note are: There is normally a class of beneficiaries who can potentially benefit from the trust. In other words, there is more than just one person who can benefit from the trust. For example, you may set up a trust to benefit all of your children and possibly grandchildren but you could leave instructions to your trustees in a letter of wishes that your child with a disability is the main beneficiary. It is up to the trustees how and when the money is spent in other words it is at the discretion of the trustees; The beneficiaries do not have an absolute right to the money they must apply to the trustees who then decide whether to make the payment or not. As the beneficiaries are not technically entitled to the money, the money in the trust should not be taken into account when assessing whether they can receive means-tested benefits. The trustees can choose to buy things for the beneficiary s benefit and payments can reflect his or her needs at the time; The assets will not be treated as part of the beneficiary s estate on their death for the purposes of inheritance tax. 10 P a g e

11 Disabled person s trusts This is a special type of discretionary trust that can be created for a person who is incapable of looking after their affairs or is entitled to Disability Living Allowance at the highest or middle rate. Key points to note are: Your child who has a learning disability would be named as the primary beneficiary of the trust; Other beneficiaries, such as your other children, would be named in a separate class of beneficiaries; The primary beneficiary will then be entitled to the income of the trust, although this should not affect their entitlement to means-tested benefits; If the trustees decide to make a payment from the capital of the trust to any one of the beneficiaries of the trust, they must make the same payment to the primary beneficiary; There are certain tax advantages to this type of trust whilst it is running but, when your child dies, the trust will be taken into account for inheritance tax purposes. Discretionary Trusts and means-tested benefits The Department of Work and Pensions (DWP) and local authorities normally disregard the money in discretionary trusts when assessing a person s entitlement to means-tested benefits or their contribution towards community care services (although this cannot be guaranteed). It is important to note the following: The DWP and local authority will normally take into account money actually paid from the trust; Trust funds should be disclosed to the DWP when making any benefits claim. It will be up to the DWP to decide what to take into account; If a person already owns or possesses money and then puts it into trust, the DWP will generally treat it as the person s money, even where trustees are controlling it. Sometimes a person is left money by a relative who dies without leaving a Will. This means the relative who died was intestate. In intestacy cases there are rules which say how the money should be distributed. Certain relatives will have legal rights to a share of the money. The person you care for may be getting money from a deceased relative because he or she has a legal right to a share of the estate. If this is the case, then even if that money is now put into a discretionary trust, the DWP or Local Authority are likely to treat the money as belonging to him or her. In this case the DWP or Local Authority will take it into account in any financial assessments. If, however, the person who has a learning disability does not have a legal right to a share of the estate, then those who do have a right to the money can gift money to the person and put it into a discretionary trust. In this case, because the money 11 P a g e

12 never legally belonged to the person with a learning disability, it should be disregarded by the DWP or Local Authority. This is a complicated area and it is essential that you take legal advice. What can be put in a trust and how much? You can put money, shares and/or property into a trust. You should take advice on whether it is financially worth setting up a trust. If you are thinking about setting up a trust, you need to think about how much money will be required to look after the person who has a learning disability after your death, based on their needs and their life expectancy. Things to consider are money to pay for trips and holidays, clothes and equipment, healthcare, extra support and even a house for them to live in. It is probably not worth setting up a trust if your son or daughter s inheritance (and any other savings or income they might have) will not take them above the limits for entitlement to means-tested benefits or personal contribution towards community care costs. You cannot get means-tested benefits (income support, income-related employment and support allowance, income-based jobseeker s allowance, housing benefit or council tax benefit) if your capital or savings are above the upper limit of 16,000. Your benefit will be affected if your capital or savings are above a lower savings limit of 6,000. If your capital is between the lower and upper limits an income of 1 for every 250 above the lower limit is included as your income. When it comes to how much a person should contribute towards their community care services local authorities should follow guidance issued by COSLA. If you have any savings or capital, the local authority can assume an income from your savings. COSLA suggests that this should be calculated in the same way as capital is treated for means-tested benefits. What can a trust be used for? Trustees are normally given wide powers to decide how to spend money in the trust. It is difficult to predict the future and building in flexibility helps avoid situations where the trustees cannot help because they lack the legal power to do so. If you decide to set up a trust it is a good idea to leave the trustees a letter of wishes saying what you would like to happen. The letter of wishes should explain: The reason for setting up the trust; 12 P a g e

13 Guidance on how the trust fund should be used to help or protect your child who has a learning disability; How the remaining trust fund should be distributed after your child s death. The letter will not be legally binding on your trustees but it can help guide them in their decisions. If one of the purposes of the trust is to protect someone s entitlement to meanstested benefits, the trustees should avoid using the trust to pay for everyday items such as food or utility bills. These should be met from income (either benefits or wages). If the trust is used to provide an income to someone who has a learning disability this could affect entitlement to benefits. A trust should really be used for the extras that enhance quality of life and that perhaps the parent has normally paid for previously such as holidays, furniture, clothing and social activities. Who will be the trustees? The trustees are the people who will manage the trust. When you set up the trust you decide who these will be. Think about this carefully. Choose people who have a real interest in the welfare of your son or daughter and who have the financial skills to manage the sums of money involved. It is useful to have at least one trustee who knows the person benefiting from the trust and also to have one trustee (such as an accountant, banker, lawyer or professional trust management company) who can deal with accounts and investments, where necessary. It is always best to ask the person whom you would like to appoint whether they are willing to act in this role before making your decision. You may wish to appoint: Family members; Friends; Professionals (such as your solicitor or accountant); Institutions (such as a bank s trustee service). Only professional trustees can charge for their services. It is possible to name substitute trustees who would take over if one of the trustees was no longer able to fulfil their role. What duties and responsibilities does a trustee have? Trusts have legal requirements for their administration and management. The role of a trustee is: To manage the assets of the trust, by investing the money or maintaining a property; 13 P a g e

14 To make payments to beneficiaries; To prepare accounts for the money and property you look after; To pay any tax that is due. Trustees sometimes do much more than this and may be closely involved in the dayto-day welfare of a beneficiary. Trustees also have the power to ask others to carry out tasks for them. How do I set up a trust? You will need to visit a solicitor to get advice on your individual circumstances and to draw up the Trust deed. ENABLE Scotland can only offer general information and help in this area. We are not a legal firm offering legal advice and cannot take on individual clients. See the next section for more advice on finding a solicitor. What happens to any money left in the trust? Most family carers want the money to be used during their son or daughter s lifetime. However, think about what should happen if money is left in the trust when your son or daughter dies. The money could go to other relatives or to a charity. This can be set out in the trust deed and means you know that, whatever happens in the future, the people or causes you care about will benefit. If your son or daughter is over 12 and has enough understanding of what a will means and what they are doing making a will (ie legal capacity) then you may wish to state in the trust deed that the balance of the trust will form part of their estate. Then your son or daughter can decide where they want the money to go after their own death. If your son or daughter cannot sign his or her name, or can only sign the first name, or make a mark, this does not, in itself mean that they cannot make a will. A will can be drawn up and then signed by a Notary Public on their behalf. A Notary Public is a solicitor who has taken an oath and is able to ask people to swear or take an oath to say that they are telling the truth. (When choosing a solicitor, check that they are also a Notary Public). If your son or daughter does not have capacity to make a wili it is not possible for someone else to make a will on his or her behalf no matter what other powers they may be granted such as a power of attorney or guardianship order. 14 P a g e

15 Section 3: Finding a Solicitor When thinking about the future it is important to talk to a solicitor who knows about Wills and Trusts. Your solicitor also needs to understand the extra concerns you may have in relation to your family member or friend with a learning disability. Can ENABLE Scotland recommend a solicitor? ENABLE Scotland is often asked to recommend local solicitors but it is not in a position to do so. However, we have included a list of solicitors in our Finding a Solicitor factsheet who have indicated an interest or experience in legal issues affecting people with learning disabilities and their families. This list is not comprehensive and we recommend that you visit the website of the Law Society of Scotland which holds a searchable database of all Scottish law firms. You will find this at Choose the Find a Solicitor option from the side navigation bar on the homepage. You can search by the name of a particular firm or solicitor, geographic location or type of law. You can also contact the Law Society directly (26 Drumsheugh Gardens, Edinburgh EH3 7YR, Tel: , lawscot@lawscot.org.uk) and it will give you the names of a few firms in your area but again it will be unable to recommend any particular firm. Other families may be able to suggest solicitors with experience in this area ask around especially if you are part of a local support group. What to consider when choosing a solicitor Ask the lawyer what experience they have of the area of the law he or she will need to use in your case. How many similar cases has he or she undertaken? Check whether the firm offers Legal Aid and ask them if it covers the kind of law needed for your case. Many children and adults with learning disabilities (and sometimes their families) will qualify for legal aid but not all firms undertake work on a legal aid basis. To find out more about legal aid and if you may qualify, or where to find a legal aid solicitor, visit the website of the Scottish Legal Aid Board at You can also contact the Legal Aid Helpline on , from 7am to 11pm on any day of the week. Ask how much the work will cost and how long it will take. Often initial consultations are free. You should be given a letter confirming the work to be carried out for you and the rates to be charged. Check what experience the lawyer has of communicating with someone with a learning disability. If the person with a learning disability is going to be the client (and not a parent or relative) is the lawyer willing to spend more time taking instruction from someone with a learning disability and explaining things? Check if the solicitor is also a Notary Public. A Notary Public can sign legal documents on behalf of someone who cannot make a signature but who understands what he or she is agreeing to in the document. 15 P a g e

16 How much will it cost to make a Will? The cost of making a Will varies from solicitor to solicitor. It is important to ask your solicitor for an indication of the cost when you first meet. The solicitor should give you a letter of engagement or business terms letter setting out the work they are going to do for you and the costs. Depending on your financial circumstances legal aid is available to cover the cost of writing a Will. A number of organisations and groups provide Wills to limited numbers of qualifying individuals, so check if you re entitled. The following are possible options but in every case check exactly how it works as if it s just filling in a template document you will probably be better to consult a solicitor: A number of trade unions offer free or heavily discounted Will writing services to their members; A few employers may offer will writing as part of their legal services; Writing a Will may be included in home insurance legal cover; Charity based schemes many charities offer solicitor Will writing schemes. In return, while you re not obliged to, they hope you ll make a donation or bequest (a donation in your Will) as part of it. Will Aid this is a UK scheme which runs every November. Will Aid teams up with solicitors to provide basic Wills. There s no set fee but Will Aid hopes you ll make a donation. Find out more by visiting or phoning Wills Relief Scotland this is a partnership between Scottish solicitors and four Scottish charities (ENABLE Scotland is not part of this scheme). Donations are given in return for writing your Will. Find your nearest solicitor at or phone Next steps Read ENABLE Scotland s Finding a Solicitor Guide for a list of local solicitors who have indicated an interest in the legal issues which affect people with a disability. 16 P a g e

17 Section 4: ENABLE Trustee Service Limited ENABLE Trustee Service is a specialist company which manages trusts for people with learning disabilities, their families and carers. Some families choose to appoint a professional trustee service like the ENABLE Trustee Service. This may be because they do not know anyone who can act as trustee or because they do not want to place this responsibility on a relative. In addition, a trust company has knowledge and experience in running trusts. Although there will be a cost for this, it means someone else takes responsibility for administration, keeping accounts and dealing with taxation. If you are thinking of doing this, ENABLE Trustee Service Limited can act as the trustee of an individual trust that you set up with the company. They will work with the beneficiary s family and carers to ensure that they make the best financial decisions for them throughout their lives. We understand that you may wish to appoint a family member or friend as a cotrustee along with a professional trustee. This can provide a personal input to management of the trust while leaving the professional trustee to deal with everything else Many professional advisors such as solicitors and banks provide Trustee services. However we may be a better choice because: We understand the needs of people with learning disabilities. We have a Board of Directors who support ENABLE Trustee Service and give guidance to the Trustee Service Manager. The Board is made up of volunteers with a wide range of expertise including parents of people with learning disabilities, solicitors, a social worker and the chief executives of disability organisations. They all give their time and expertise for free. Any surplus made by ENABLE Trustee Service is reinvested by ENABLE Scotland. This allows us to provide more services for people with learning disabilities and their carers. We do not set a minimum investment amount. We employ an expert tax adviser We take independent expert investment advice. We offer a personalised and proactive service. Next steps Read more about the ENABLE Trustee Service in our information booklet 17 P a g e

18 Section 5: Key Words Beneficiaries Codicil Co-trustee Discretionary Trust Estate Executor The person(s) or body who benefit from your Will and / or Trust. A document that makes small amendments to, rather than replaces, a previously signed Will. A trustee of a trust when there is more than one trustee acting at the same time. A trust under which the trustees have discretion about how to use the trust s income and sometimes the capital. Everything you own at the time of your death, after all the money you owe has been paid. The person(s) responsible for paying debts of the deceased and then carrying out the instructions of a person s Will or paying out a person s estate according to the laws of Intestacy if there is no Will. Guardianship Order An order under the Adults with Incapacity (Scotland) Act 2000 from the Sheriff Court appointing a person to look after the financial and/or welfare affairs of someone who is not able to look after those affairs for himself or herself. Inheritance Tax Intestacy Legal Rights Liabilities Liferent Means-tested Benefits Moveable Estate Power of Attorney Trust Trust Deed Trustee Will A tax that is charged on the value of your estate after your death if the value is above the current inheritance tax threshold. The legal term for when a person dies without having made a Will. Legal rules say who receives the assets. The right of your spouse and children on your death to a certain amount of your 'moveable property', which means money, cars, jewellery, antiques and so on, but not land or houses. Any debts you owe (for example a mortgage, bank loan, credit and store card debts and outstanding bills). A right to use property (often a house) for the duration of a person s life. On death ownership of the property passes to another person. Benefits which are only paid to people with limited income and which include income tax, housing benefit and council tax benefit. All property apart from land and buildings so money, shares, jewellery, cars, furniture, antiques, etc. A written document which lets you say who you want to look after your affairs if you are incapable of doing so for yourself. You choose the person(s) you want to help you and decide what powers the attorney should have. A legal arrangement that allows a person or an organisation to look after someone else s money. A written document recording the terms of the trust and choosing the trustees. A person or organisation who is appointed to manage the trust. A legal document which sets out who is to benefit from your property and possessions after your death. 18 P a g e

19 Section 6: Further help For further information about Wills and trusts, learning disability and related topics visit or contact ENABLE Direct on Monday Friday 9:00 am 5:00 pm or Contact ENABLE Direct to request any of the following factsheets: Making a Will Workbook; Finding a Solicitor; Introduction to the Adults with Incapacity Act; ENABLE Trustee Service information booklet. For more information on ENABLE Trustee Service contact us on or trustee@enable.org.uk. Contact the ENABLE Trustee Service about delivering a talk or workshop to your group or organisation on Wills and trusts. 19 P a g e

20 Date information correct: October 2011 This information is given as guidance only and is not an authoritative guide to the law. Individual circumstances can vary and people are advised to seek advice if they have a specific concern or query. Could you leave a gift to ENABLE Scotland? Gifts in Wills are used to fund our campaigns to improve the laws and services that affect people with learning disabilities and bring about long lasting changes in education, equality and inclusion, and to fund our support for family carers, and our employment and training programmes. The legacy gifts that we receive at ENABLE Scotland are vital in ensuring that we can continue supporting people with learning disabilities long into the future. Any gift, no matter how small, really does make a difference. ENABLE Scotland This factsheet may be freely copied as long as the source is acknowledged. ENABLE Scotland Charity no: SC A limited company registered in Scotland No: Registered office 2 nd Floor, 146 Argyle Street, Glasgow G2 8BL 20 P a g e