My late Mum set up a Discretionary Trust in her Will. Despite having seen a copy of the Will, the Department of Work and Pensions are with holding one of my brother's benefits (he has Down's Syndrome). They say they require proof that the Trust has been established. Our understanding is that the Trust was established at the time of our Mum's death because it was embedded in her Will.
Has anyone else faced this issue and if so how was it resolved?
Many thanks
You’ve got me worried now as I have done a discretionary trust for my son, please would you let us know what you find out.
I'm sure we will resolve it. Was just looking for some advice on how to do that.I'll definitely post when I have some answers!
Hi there. I am not an expert and you probably need to consult a solicitor or financial advisor for advice for your particular circumstances. We have a discretionary trust and as trustees we had to register the trust with HMRC and we have to do annual returns. There are tax implications of having a trust and you must make sure you are paying the correct rates of tax on any income from the trust. We also had to set up a special trust type bank account which in our case requires at least two trustees signatures to do anything with the funds. We also have to keep careful receipts for all monies going out of the trust. I think there is also something you have to be careful about in terms of who can benefit from a discretionary trust ie if the will stated that the trust was only for the benefit of one person, social care or DWP could argue it is, in effect, that person's money despite it being in a trust. For this reason it is usual to set up a class of people in a will eg, all grandchildren, and then leave a letter of wishes saying how the money should be used. There are no guarantees that the trustees have to do this as a letter of wishes is not legally binding but it is this element of the trust that makes it ‘discretionary’ and not belonging to the person for benefits purposes.
Hello Benedict39
I am sorry this is causing you and your brother stress. Financial and legal matters can be very hard work, but it does sound like your mum did the right thing by setting up the Trust.
We can't give any legal advice here, but I am sure other people will share their experiences.
Please do go back and speak to your solicitor/the solicitor who wrote the Will and they should be able to advise.
You could also ask our Wills and Trust Service for support. You can call them on 0207 696 6925 or email willsandtrusts@mencap.org.uk. Here is a link to their webpage - mencap.org.uk/advice-and-su...
Best wishes
Sarah
Hi, as SpeedyH has stated, Mum had a discretionary trust in her will. When our Mum passed away, we had to set up the trust bank account, which in itself was extremely difficult as many High St banks don't offer these accounts. On the advice of our family solicitor the Trust was set up in all siblings names, with Mum's wishes that the money was to be used for my brother's benefit to be taken account of. My siblings(5 of us) are all in agreement and recognise that the money is to be used for the benefit of my brother only. I think that the parent/s must make sure that this is discussed, and agreement reached, with all siblings when are alive.
You will need legal advice. As SpeedyH has said all trusts have to be registered with HMRC now. It’s best to get advice from a solicitor who deals with trusts. Being a trustee makes one legally responsible for what happens with the trust and the money or property in it has to be managed properly. It may be that the DWP want to see proof that the trust has been registered. A solicitor could advise and also deal with the DWP for you. It would be an expense but probably a cost that could be paid out of trust funds.
Thank you all for your comments.As Sarah_Mencap said, our Mum was absolutely right to set up the Trust. I know that she did this in the hope that my sister and I (we are the Trustees) would not experience the problems we are now encountering with the Department of Work and Pensions (DWP).
We have consulted a solicitor (recommended by MENCAP) and now that Probate has been granted are in the process of opening a Trust account and are fully briefed on our responsibilities regarding registering with HMRC, tax returns etc.
The with holding of one of my brother's benefits by DWP came to light after we met with the solicitor. I suspect that DWP officials either do not understand how such Trusts work, or they are stalling in the vain hope that they can wriggle out of paying my brother the benefit to which he is entitled. Precisely the situation my Mum was hoping we wouldn't face.
It seems from your replies that non-one else has experienced this kind of pushback from DWP. So my sister and I will go back to the solicitor to see how we can overcome this impasse.
I'll post again when we have a resolution.
Thanks again
I'll keep it short, With the Greatest respect the situation that your Mother was trying to avoid is very lightly to happen and sadly the DWP won't pay your disabled brother what he's entitled to. There going to treat this as "a deliberate deprivation of assets" and still treat you and your brother and your sister as possessing capital no matter what you do.
I am not sure that it is legal for the DWP to do so. I recall seeing on the Renaissance Legal website that there was a court case about this and a discretionary trust cannot be considered to be assets.
covid vaccine 
Hello and thank you for reading...
Trust Fund via a Solicitor
Hospital Experiences
Day care centre 
