Disability will
What is a disabled person's will?
A disabled person's will is a special form of will in which at least one heir with a disability is included. This will prevents the family assets from falling to the social welfare organisation and instead remaining within the family. The main aim of a disabled person's will is therefore to ensure the financial well-being of the disabled child.
What is the situation under inheritance law without a will for the disabled?
A relative with a disability may experience certain disadvantages as a testator if no specific testamentary arrangements have been made. If the parents of the disabled child have not drawn up an effective will or inheritance contract, statutory succession applies.
If there are several legal heirs in the event of death without a will, including a disabled relative with a legal right to inherit, they form a community of heirs. These heirs must decide together how the estate is to be divided - a task that a disabled relative or a relative in need of care may find difficult to fulfil in this group.
It is important to note that the disability often results in high costs for care or institutionalisation. As these expenses are not normally covered by pensions or similar income, the state will cover the costs incurred. However, the principle of subordination applies when granting social benefits. This means that recipients of social benefits must first use their own assets to cover the costs incurred. If a person with a disability inherits money or other assets, they must use them. In other words, the inherited assets would go directly to the state, which would penalise the heir.
It should also be noted that it is not advisable to disinherit the disabled child. Disinheritance would mean that the child would still be entitled to a compulsory portion. The social welfare provider can transfer this compulsory portion claim to itself while the benefits are being paid and offset the compulsory portion against the benefits paid.
Is a disabled person's will legally permissible?
In the case of deliberate circumvention of potential claims by the welfare state, the question has always arisen as to whether such behaviour is contrary to accepted principles of morality within the meaning of Section 138 of the German Civil Code (BGB) and whether any orders are therefore null and void.
In several judgements, the courts have ruled that the preparation or the instructions of a disabled person's will are not immoral (BGH, decision of 24.7.2019 - XII ZB 560/18; OLG Cologne, judgement of 9.12.2009 - 2 U 46/09). Even if the family has considerable assets and the social welfare provider misses out on large sums as a result, immorality must be rejected due to the freedom to make a will, which outweighs the protection of the welfare state (OLG Hamm, judgement of 27.10.2016 - 10 U 13/16).
How is a disabled person's will structured?
In order to avoid access to the inheritance by the social welfare provider as the disabled person's creditor, means of organisation must be used to protect the inheritance from enforcement by the creditors.
Pre- and post-inheritance and the execution of wills are possible instruments for this purpose. Section 2115 BGB, Section 773 ZPO and 83 (2) InsO guarantee the protection of the entire estate, which is subject to the obligation of the subsequent heirs and protected against realisation by the creditors of the estate. This means that although estate assets can be seized or confiscated, the cancellation of these measures is conditional on the occurrence of succession. During the period of succession, however, any acts of realisation are not permitted.
In a classic disabled person's will, the relative in need of care is appointed as the prior heir and is given a share of the estate that is slightly higher than the compulsory portion. At the same time, one or more persons are appointed as subsequent heirs, to whom the inheritance is transferred at a time determined by the testator, at the latest when the previous heir dies.
The testator must also order a permanent execution of the will for the lifetime of the disabled relative. The executor of the will must be given clear instructions in the will as to how the income from the estate is to be used to improve living conditions.
In addition to the above Inheritance release There is a further option for drafting the will, namely the Legacy solution. The disabled child of the deceased is appointed as an advance legatee, while other descendants are named as subsequent legatees. Typically, the legacy consists of a fraction of the total value of the estate, known as a quota legacy, which corresponds at least to the compulsory portion of the disabled heir. At the same time, an execution of the will is ordered for the administration of the bequeathed object, which extends beyond the time of the occurrence of the subsequent legacy.
The purpose of this instruction is to protect the bequeathed object from being seized by the creditors of the legatee in accordance with Section 2214 and at the same time to prevent the social welfare provider from having access to it. In the context of a will for disabled persons, the executor of the will is given binding instructions pursuant to Section 2216 para. 2 to grant certain uses of the bequeathed object to the legatee and, if necessary, to make parts of the bequest available.
What are the advantages and disadvantages of the legacy solution?
A not inconsiderable disadvantage of the inheritance is that the disabled child becomes part of the community of heirs. However, the aim of this community is to dissolve itself, as several heirs inherit the assets together and must decide how to distribute the assets based on their respective inheritance shares.
In the case of a disabled person's will, this distribution is often particularly complex, especially if the disabled child is under legal care. However, if the child is only named as a legatee, he or she only receives a claim under the law of obligations. The surviving spouse or siblings can then fulfil this claim more easily compared to the settlement of a community of heirs.
The disadvantages of the bequest solution lie in particular in the uncertainties often attributed to it, as it is not sufficiently backed up by case law.