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Wills for Disabled Children UK: Trusts & Planning

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Part ofWills & Probate

Written by Brad Askew Solicitor (non-practising)
Brad is on the roll of solicitors of England & Wales but does not hold a practising certificate and does not provide legal advice.
England & Wales
Planning what happens to your estate is difficult for any parent, but when you have a disabled child the stakes feel much higher. A straightforward will that simply splits everything between your children may cause real harm, potentially cutting off means-tested benefits, leaving vulnerable beneficiaries without proper support, or handing significant sums to someone who cannot manage them safely. The good news is that English and Welsh law offers well-established tools to plan for this, including discretionary trusts, letters of wishes, and carefully chosen trustees. This guide walks through the options in plain English, explains how trusts can sit alongside benefits such as Universal Credit or ESA, and sets out the practical steps families typically take when putting a will in place. The aim is to give you a clear picture of what good planning looks like, so you can make confident decisions about your family's future.

What this document is

A will for a family with a disabled child is a standard last will and testament, drafted with additional provisions that reflect the needs of a vulnerable beneficiary. In most cases, rather than leaving a direct gift or share of the estate to the disabled child, parents leave the relevant share into a trust.

The trust holds the money or assets, and trustees use them for the child's benefit according to instructions the parents set out. The most commonly used structure in England and Wales is a discretionary trust, sometimes called a disabled person's trust where the beneficiary meets specific statutory criteria.

These structures are designed to protect eligibility for means-tested benefits and local authority support, because the assets belong to the trust rather than to the individual. They also protect against risks such as financial abuse, poor decision-making capacity, or a future loss of capacity.

The will works together with a letter of wishes, which guides trustees on how the parents would like funds used in practice.

How to use this document

  1. Take stock of your family and finances. List your children, note any care or capacity issues, and add up your assets including property, pensions, savings, and life cover. Think about who already supports your disabled child, what their daily needs look like, and whether they currently receive means-tested benefits or local authority funding.
  2. Decide on the structure for your child's share. For most families with a disabled child, a discretionary trust within the will is the preferred route because it keeps assets outside the beneficiary's personal means assessment. Consider whether to use a disabled person's trust, which can offer tax advantages where the beneficiary meets the statutory definition, and think about how the rest of your estate should be divided.
  3. Choose your trustees and guardians carefully. Trustees will manage the trust fund for your child, sometimes for decades, so pick people who are financially literate, trustworthy, and likely to outlive you or be replaceable. If your child is under 18, you will also need to appoint guardians. Many families choose a mix of a family member and a professional trustee for balance.
  4. Write a clear letter of wishes. This sits alongside the will and guides trustees on how you would like the trust fund used, for example topping up care, funding holidays, paying for equipment, or supplementing but not replacing state support. It is not legally binding, which is deliberate, as it allows trustees to adapt to future changes in benefits rules or your child's circumstances.
  5. Have the will drafted, signed, and stored properly. The will must be signed in the presence of two independent witnesses who also sign, following the formalities in the Wills Act 1837. Keep the original somewhere safe, tell your executors where it is, and review the will whenever your family, finances, or the law around benefits and trusts changes materially.

Common questions

Q Why shouldn't I just leave money directly to my disabled child?
A direct inheritance becomes the beneficiary's own capital, which can disqualify them from means-tested benefits such as Universal Credit, income-related ESA, or local authority care funding once it exceeds the relevant thresholds. It can also create risks if the person lacks capacity to manage large sums, or if someone else might take advantage. Holding the share in a trust keeps the funds separate and available for top-up support.
Q What is a discretionary trust in a will?
A discretionary trust is a structure where trustees hold assets for a group of potential beneficiaries and decide when and how to make payments. No single beneficiary has an automatic right to the money, which is why it usually sits outside their means assessment. Parents guide trustees through a letter of wishes, covering practical priorities such as care costs, therapies, housing adaptations, and quality-of-life spending.
Q What is a disabled person's trust and is it different?
A disabled person's trust is a specific type of trust recognised in UK tax law where the principal beneficiary meets statutory criteria relating to disability or incapacity. It can attract more favourable treatment for inheritance tax, capital gains tax, and income tax compared with a standard discretionary trust. Whether it suits your family depends on your child's circumstances, so this is often a key point to discuss before drafting.
Q Who should I appoint as trustees?
Trustees should be people you trust to act in your child's best interests over the long term, often for decades after you are gone. Many parents choose a mix of a close family member who knows the child well and a professional trustee or solicitor who brings technical and administrative experience. Appointing at least two trustees, with clear replacement provisions, helps keep the trust running smoothly if someone steps down.
Q Does the trust affect means-tested benefits?
A properly structured discretionary or disabled person's trust is generally disregarded in means-tested benefit assessments, because the child has no automatic right to the capital. Payments made from the trust can still be relevant in some situations, so trustees usually plan distributions carefully, often topping up rather than replacing state support. Rules can change, so trustees should keep an eye on current guidance.
Q What happens to the trust fund when my disabled child dies?
Your will should set out who receives anything left in the trust after the principal beneficiary's death, often called the remainder or default beneficiaries. This might be your other children, grandchildren, or a charity that supported your family. Clear drafting here avoids disputes and ensures the remaining funds pass smoothly, without falling into intestacy rules or causing family conflict.
Q How often should I review this type of will?
A review every three to five years is sensible, and sooner if anything significant changes. Triggers include a new child, a death in the family, a change in your disabled child's care needs or capacity, a move of house, a large change in your finances, or a shift in benefits or tax rules. Keeping the letter of wishes up to date is just as important as the will itself.

Sources

This guide is based on primary UK law and official guidance.

Brad Askew, Solicitor (non-practising)

Written & reviewed by

Brad Askew Solicitor (non-practising)

Brad is on the roll of solicitors of England & Wales but does not hold a practising certificate and does not provide legal advice. LegalDocuments.co.uk is not a law firm and does not provide regulated legal advice.

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Legal disclaimer
This article is for general information only. It is a tool to help you find your way — not legal advice, and not a substitute for speaking to a qualified adviser about your situation.