What happens when we are no longer there? - The right provision for children with disabilities

People with disabilities are particularly dependent on the help of their relatives. But who takes care of a disabled child when the parents pass away? And above all, who will ensure that the child continues to receive the support, such as therapies, that are necessary to provide optimal support in the future? 

Relatives not only invest a lot of time and care in accompanying people in need of help, they also worry about how care can continue to be provided after their death. "What many of those affected are unaware of is that there are tried and tested legal means of structuring estate planning for such cases," says Martin Thelen, press spokesman for the Federal Chamber of Notaries.

Parents of children with disabilities often wish to leave something to their child from their estate in order to improve their quality of life beyond the level of state welfare benefits. In particular, the child should be allowed to keep as much of the inheritance as possible or use it for special therapies beyond the scope of social benefits. In addition, property or other assets that were often owned by the parents' generation should remain in the family for generations to come.

In order to be able to implement these objectives, parents of disabled children should definitely seek legal advice. Otherwise, there is a risk that the benefits will be used up via the so-called "social assistance recourse" or that family assets will have to be realized without improving the child's position in life beyond the level of social benefits. The background to this is that people with disabilities often receive integration assistance benefits and, if necessary, benefits to secure their livelihood, for example for their accommodation and general living requirements. Part of the nature of social assistance is that it is granted on a subordinate basis. This means that the social welfare provider only has to provide benefits if there are no (or no longer any) options for financing. The child's own income and assets - with the exception of so-called protected assets - must be used first. In principle, this also includes inherited assets, which must first be used up or utilized.

The Federal Participation Act, which largely came into force in 2020, has improved the participation and self-determination of those entitled to benefits. However, there is still a need for individual advice to ensure targeted support for children with disabilities. In this respect, Thelen advises against drawing up a conventional handwritten will without legal advice: "If the parents bequeath something to their disabled child, the child must generally use the inherited assets later for their own living expenses, i.e. in particular for their care. If, on the other hand, they disinherit their child in order to prevent the social welfare provider from accessing the assets, the child is entitled by law to a compulsory portion, which is at least half of the statutory inheritance share and cannot normally be excluded. The decisive factor, however, is that the social welfare provider can transfer this claim to itself under certain conditions and assert it in place of the disabled child, without it being dependent on the will of the child itself or its carer."

In such cases, inheritance law provides a large number of instruments for drafting wills that are usually unknown to the layperson. Their legally skillful combination can actually help parents of children with disabilities to achieve the desired result. However, as there are many pitfalls lurking here, which unfortunately often turn the well-intentioned into its opposite, it is essential to seek legal advice when drawing up a so-called "disabled person's will". Notarization in particular offers advantages over a handwritten will. As a rule, it not only makes the issue of a certificate of inheritance unnecessary, but also ensures comprehensive advice, professional implementation of your individual will and a legally secure and forward-looking design.

You can find further press releases from the media association on all topics related to the notary's office in the Press portal of the media association of the chambers of notaries.