Disability wills
Without testamentary provisions, i.e. in accordance with the statutory succession, a family consisting of the parents (married in a community of accrued gains) and, for example, two children, creates a community of heirs when the first inheritance occurs, in which the two children (¼ each) participate in addition to the surviving spouse (½). This leads to considerable difficulties even with two "healthy" children. However, the case is even more problematic if one of the children is dependent on social benefits, e.g. due to a disability.
Without testamentary provisions, i.e. in accordance with the statutory order of succession, a family consisting of the parents (married in community of accrued gains) and, for example, two children, creates a community of heirs when the first inheritance occurs, in which the two children (¼ each) participate in addition to the surviving spouse (½). This leads to considerable difficulties even with two "healthy" children. However, the case is even more problematic if one of the children is dependent on social benefits, e.g. due to a disability.
Anyone who receives social benefits can in principle - like anyone else - become an heir. However, this inheritance is usually counted as assets/income by the social welfare offices. As a result, the social welfare office suspends its benefits until the person's own assets have been used up to the limit of the protected assets. The protected assets for people who (also) receive basic income support are currently only EUR 5,000.00. If the protected assets are exceeded as a result of the inheritance, the heir concerned must use the entire "excess" assets for their own provision (so-called subordination principle of social welfare law). This is a problem that cannot be solved by "disinheriting" the child in question. If a child is "disinherited", they are entitled to a compulsory portion (amounting to half of the statutory inheritance share). The social welfare provider can transfer this claim to itself and assert it.
A so-called disabled person's will is therefore ultimately the only way to prevent the social welfare agency from accessing the inherited assets. The inheritance can then be used to finance additional services and thus contribute to improving the quality of life of the person with a disability.
In this case, the inherited assets are removed from the reach of the child with a disability or their guardian through the execution of a will. As a consequence, the child's creditors, i.e. the social welfare provider, cannot access the inherited assets either.
The task of the executor of the will is to manage the assets left to the child in accordance with the administrative instructions made in the will. In this way, excursions, medical treatment, hobbies, etc. can be financed in addition to basic care.
By arranging a so-called prior and subsequent inheritance, it can be ensured that the (remaining) assets still available after the death of the disabled child are passed on to the other children, for example, in accordance with the parents' wishes.
In addition, further provisions can be included in the will, such as a caregiver's wish.
The decisive factor here is that the disabled child always receives "slightly" more than their compulsory portion in both the first and second inheritance cases. This is the only way to ensure that the social welfare provider does not transfer the (residual) compulsory portion claim to itself one day and assert it.
In view of the complexity of a so-called disabled person's will, the above explanations can only provide a rudimentary overview.
If you have specific questions or would like an assessment of your case, we will be happy to provide you with an initial consultation at any time. The costs of such a consultation amount to a maximum of EUR 190.00 plus VAT. The duration of the consultation and the size of your assets are irrelevant.
Status: 14.12.2022