Many parents are keen to leave all their children with an equal inheritance. But what if the needs of one child are greater than the others? Whether they're medical needs, care needs, or accommodation, it can feel like an impossible problem to solve.

These issues are considered in the BBC2 programme You can't take it with you: Disability, broadcast at 9pm on Friday 18 February 2011. 

When you choose to make your will, it's important to know that inheritance law in England and Wales gives you the power and freedom to make detailed plans. While it can seem very difficult to balance being equal with treating everyone according to their needs, our clients have been pleased to learn there are lots of ways to provide for all those they care about in a fair and balanced way.

The options

If you have a child with particular needs it pays to plan ahead. The best options for your family will depend on the individual circumstances.

It may be best to leave gifts for all your children outright. This can be the most simple and equal solution, and can bring certainty to the situation.

However, if you have a child who'll need more financial support after you're gone than other members of your family, this may not be the best solution. It can be very difficult to gauge how much to leave to care for those particular needs. How will you know whether you've left enough to care for those extra needs? On the other hand, what arguments and acrimony might you leave behind if you left too much?

One solution may be better to give those children with extra needs a life interest in some of your assets. This could apply to a house and could mean that a child could live there rent-free until they in turn, die; or it could apply to savings, meaning the child could benefit from the interest. After they pass away, the asset could be split equally among your remaining descendants. By taking this route, you can make extra provision for those in need, in the knowledge that ultimately your estate can pass to other members of your family.

Another popular solution in this situation could be to use what is known as a discretionary trust. In a discretionary trust, the inheritance you give to each member of your family is not fixed. Instead, you nominate trustees, who then decide what best to do with that inheritance after you pass away. The trustees will have a broad discretion to do what they see as best, but in this task, you can guide them about your hopes with a Letter of Wishes.

The trustees do not have to hand out all the assets straight away; they would be able to decide to invest some or all of the trust funds in order to provide an income, or let people live rent-free in your property if necessary. But they would be able to change these provisions as time goes on and those extra needs change.

The discretionary trust is therefore a very flexible way of planning your inheritance that can react to changes of circumstances after you pass away. The trustees can ensure everyone is provided for in accordance with your wishes.

How we can help

Access Legal from Shoosmiths has been advising clients and drafting their wills since 1845. When you speak to us, you'll benefit from our huge wealth of professional experience. There are very few family circumstances we've not helped solve before. We can guide you through the precise details of all these options and others, and provide solid practical advice about how to address any potential issues.

Feel free to get in touch with us seven days a week on 03700 86 86 86. For further details on the process of making a will, please look at our free factsheet Making a will.

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