Thomas J. Reilly
The Dignity Group
1163 East Ogden Avenue, Suite 705-354
Naperville, IL 60563
(630) 681-1119
E-Mail: dignitygroup@uus.net
  Reprinted from the Workbook on the Special Needs and Services with Disabilities, 4th edition, with the permission of The Dignity Group

For many people, writing a will is admitting mortality. Accepting that "I am going to die". What many people don't realize is that we already have a will. If we die intestate (without a will), then the State of Illinois has one for us they have already written. Your property would be distributed according to Illinois probate law.
Whether or not you have a will, allowing the person with a disability to inherit or receive a large amount of cash or other assets is a big mistake.
In any event as the parent(s) of a child with disabilities, you cannot afford the luxury of not having a will. If you wish, we can provide you with the names of several attorneys that we feel will represent your special concerns.
Any time you give money to your child with a disability by inheritance, by any or by any improperly worded trust, you face four basic problems.
Leaving no money to the individual with a disability by will, trust or gift, will help avoid inheritance problems. Families who do this have chosen a realistic plan and made the decision that government benefits for care and maintenance should be made available to the disabled family member.
If you feel that total disinheritance is too harsh, you can leave a token bequest (under $2,000) to your child without jeopardizing your child's benefits under government programs.
You may chose to partially disinherit your child by leaving no gift or inheritance directly to your child, but putting money into a trust for the child's benefit. Trusts will be discussed in that section of the workbook.
Leaving assets to your child that are not considered in determining eligibility for government benefits is another option to consider.
A word of caution: If an item is not mentioned in your will the state probate laws will determine how that property is distributed. This could cause you to make your child ineligible for benefits. Therefore, your will should have a residuary clause. See your attorney for more information.
When you draft a will, it is vital that you consult an attorney familiar with planning for a family with a member who is disabled.
Prior to meeting with an attorney you should have had a family meeting and have answers to the following questions:
  1. What are your goals and objectives?
  2. What are your major assets (home, autos, insurance, pensions, stocks, etc.)?
  3. Who is to receive assets? Which assets? How much?
  4. Who will be the executor of your estate?
  5. What special provisions do you want to make for your child with a disability?
The executor is responsible for assembly and inventory of your property, payment of funeral bills and taxes, providing a final accounting to the court, and distributing your property as you have instructed in your will.
A letter of intent may be another important piece of your estate plan. Although it is not binding, it can be a guide in caring for your child to be used by guardians, trustees, or other individuals who may accept that responsibility. This is the place where you can describe the care and services you want for your child.

What happens to your estate, if you die without a will?
It will pass under the Law of Intestacy (a typical common law state)
Persons left survivingThe decedent's property
Spouse and one childOne-half to spouse, one-half to child or child's descendants
Spouse and childrenOne-third to spouse, two-thirds to children or their descendants
Only childrenAll to children, or their descendants
Only spouseOne-half to spouse, one-half to decedent's parents if living, otherwise to his brothers and sisters
Only parentsAll to parents equally or the survivor
No spouse, nor children, nor parentsAll to brothers and sisters equally or their descendants

Also, without a will your cannot:
  1. Choose the executor for your estate
  2. Choose the guardian for children
  3. Waive Fiduciary Bonds
  4. Authorize business continuation
  5. Make specific bequest or create trusts