Tips for making a will if you have a loved-one with a disability

A family with a child in wheelchair and two sisters walking among autumn leaves

Why it’s important to have a will

Making a will is an important part of future planning, however it can be challenging and is very easy to put off. If you have a child or relative with a disability, making sure your will is up-to-date is even more crucial. Not having a valid will requires others to make important decisions for you – often with results that you would not have wanted. A properly drafted will gives you peace of mind, knowing that you have made proper provisions for your family, and can ensure that your loved ones are taken care of, and in the case of disability, their benefits won’t be affected.

Sometimes getting started is the hardest part. In order to make the process a little less daunting, we’ve compiled a few tips. Please refer to this glossary of terms if you are unsure of a meaning.

Determine Assets

Complete the Will Planning Worksheet from Safe and Secure: Six Steps to Creating a Good Life for People with Disabilities. This will give you an idea of your assets and help you make decisions.

Decide how you want your estate distributed

For example: All your assets go to your spouse. When that spouse dies, split the assets among your children in equal shares.  If you don’t decide how your assets will be divided, they will be done so according to provincial law. Make sure to also appoint an executor and alternate executor. The executor is responsible for protecting and administering your estate and distributing your assets to your beneficiaries. You’ll want to choose someone you trust who is capable of making financially responsible decisions.

Consider a discretionary trust

Many parents choose to set up either a discretionary or non-discretionary trust for their son or daughter. A discretionary trust is a way to shelter money so that it does not affect one’s disability assistance. Otherwise any money received over a certain limit (each province has its own limit) will not be considered an asset in regards to determining eligibility for receiving disability assistance. 

You will also need to choose a trustee of the discretionary trust and a beneficiary of the trust when your relative passes away. It is very important to choose the right Trustee, someone who will most likely out live you and someone that you deeply trust. Here is a good blog post on choosing the right Trustee.

Choose a guardian

If you have children under 19 years of age, decide whom you will appoint as their guardian.

Consult with a lawyer

Take all this information to a lawyer who has experience in wills and estates for families and individuals with disabilities. Ask the lawyer to explain the tax and legal implications of your decisions. Keep in mind that it is important to write your will according to the specific laws in your province, otherwise it may be declared invalid. It is advisable that you consult with a lawyer in your area who understands the specifics of disability law. 

Regularly review and update your will

It is recommended that you revise your will every few years or whenever something significant happens. Some examples of significant events are a new birth in the family, your relationship status changes, you move, your trustee moves out of province, or your health changes. Doing so will ensure that your will reflects your current situation and desires.

Good luck!

We hope that this information will help you get started with the will planning process or encourage you to update an existing one If you are in BC and would like to learn more about planning your will if you have a loved-one with a disability, we offer an online workshop Click here to learn more.

Related resources:

Wills, Trusts, and Estate Planning Webinar This online workshop is facilitated by a lawyer who specializes in disability law and designed specifically for families with a loved-one with a disability.

BC Lawyers ListA list of lawyers who have experience with disability law in British Columbia.

Disability Planning Helpline: 1-844-311- 7526. Call the toll-free helpline from anywhere in Canada and one of our family experts will answer your questions about the Disability Tax Credit, the Registered Disability Savings Plan (RDSP), trusts & estate planning, advocacy approaches, government benefit programs, social network building and more.

Provincial and territorial resources on estate law

Inspiring Possibilities Estate Planning Guide – A Tax benefits, trusts, and wills toolkit for Ontarians with disabilities

Why and How it is Important for You to have a Will

How to Find a Lawyer who Understands Disability-Related Trusts

Future Planning Tool – An online tool to help you secure the future for you or anyone with a disability.

Final Act of Kindness – A planning resource to guide your loved ones after you are gone.