All parents who have children with disabilities ask themselves an agonizing question: what will happen once we are gone?
The law defined on the “after us” (law 112 of 2016) has answered this question by introducing in our country the institution of the trust, a legal instrument of Anglo-Saxon origin, which has the purpose of protecting the seriously disabled at the time which they lose the protection of their family members, because they have become too old to continue to take care of them or because they have died. The majority of seriously disabled people, in fact, find themselves in great difficulty when their parents die: they are placed in depersonalizing institutions, which due to the way they are structured cannot favor the development of the personality of each of the guests, the satisfaction of each one’s particular needs and the their inclusion in society.
By law, every seriously disabled person on the death of his parents must have a support administrator in charge of managing his assets through the authorizations required from time to time by the Guardianship Judge, with timings that are difficult to reconcile with the satisfaction of the needs of daily life.
Disabled children on the death of their parents, however, need not only to have economic resources available for their livelihood but someone who protects their interests, manages their every need and provides for their daily care promptly; the usual hereditary instruments are insufficient, as is the figure of the support administrator, a role which, as long as it is covered by the parents, guarantees and satisfies all the needs of the disabled child, but when it is covered by a person appointed by the Court, even if necessary, it is no longer as effective.
The “after us” trust has the ambition to go beyond the traditional system and to allow the family or parent to allocate their assets or part of it, organizing the future of the child in the best possible way when he/she will no longer be there, avoiding its institutionalization .
With the “after us” trust, the parents (landlords) already in the period that we could call “during us”, i.e. when they are still alive and able to take care of their child, will be able to worry about his autonomy and not only economic independence, conferring temporarily their movable and immovable assets to a person or a trust company, the so-called trustee, who will formally become the owner of the aforementioned movable and immovable assets with the obligation, upon the death of the parents, to manage them in the exclusive interest of the beneficiary, according to the provisions of the parents, guaranteeing the best quality of life to the beneficiary and with the obligation, upon the death of the disabled beneficiary, to assign them to the subjects indicated by the settlors, i.e. the mother and father of the fragile subject who set up the trust.
In this way, when the parents are still alive, they will be able to progressively take charge of the disabled person during their lifetime by making plans with the trustee in favor of the disabled child; they will be able to define in detail the objectives and levels of assistance and daily care to be guaranteed to the child, when they are no longer there. In the trust set up for the after us it is mandatory to support the trustee with the person (so-called guardian), who covers the role of support administrator of the severely disabled, usually a person trusted by the parents, who knows the disabled child well, his daily problems, his needs, which monitors, directs and makes, if possible, even more effective the work of the trustee already defined upstream by the parents’ provisions, adapting them according to the evolving reality of the child. Parents often direct their choice for the office of guardian towards people of such an age that they can accompany their disabled child for her entire life.
Sometimes, but not necessarily, the tasks expressly linked to the person are entrusted to the guardian and those linked to the assets and its management to the trustee.
The law on after us has the objective of allowing parents to guarantee a serene “after us” for their child, to manage the succession for the child in the best possible way, not only avoiding institutionalization but also eliminating the inevitable bureaucratic delays linked to the support administration which provides for an examination by the guardianship judge in charge. This is possible because technically the assets conferred in the trust (trust fund) by the parents in favor of the child belong to the trustee (even if it is a conditional and temporary property) and not to the disabled child; without the “after us” trust, on the other hand, upon the death of the parents, the assets would be owned by the disabled child and would have to be managed by the support administrator, with the delays determined by the authorizations from time to time to be requested from the guardianship judge. With the trust, the disabled child enjoys all the guarantees provided by a support administrator (who is also present as a guardian) but receives tailor-made care and protection, adapted to his needs and in “real time”. With this tool, parents have a guarantee that the trustee follows their instructions, since he assumes the obligation with a public deed to carry out the life plan prepared for the child by the parents as well as the welfare objectives for the weak subject. The guarantee on the correct operation is based on his obligation to maintain accurate accounts accompanied by the documentation of each operation and by the annual delivery of the inventory of the fund (i.e. of the assets conferred in trust) to the guardian.
From a fiscal point of view, this transfer of assets, considered the cause of the protection of a weak subject, is particularly facilitated. Upon incorporation, the transfer of assets is not subject to the proportional inheritance and gift tax, but is subject exclusively to the fixed registration, mortgage and cadastral tax; parents, therefore, already know what tax cost they have to bear when they decide to set up a trust of this type.
At first, this aspect was not peacefully accepted by the Revenue Agency, but the jurisprudence of merit and legitimacy has recently intervened by clearing the field of any doubt (Cass. 3075/2021). Obviously, to enjoy these benefits, the trust must pursue the social inclusion, care and assistance of the disabled person in favor of which it is established as its exclusive purpose.
The trust ends with the death of the beneficiary or of the disabled child and the remainder, if any, should be allocated to the subject identified by the parents who set up the trust for the child at the time.
Upon termination of the trust, the State provides for the application of ordinary taxation towards those who will come into possession of the assets that were in the trust, i.e. the inheritance/donation tax, taking into account any kinship between the settlor and the beneficiaries of the residue.
The main criticality of the trust in this historical moment concerns trusts with modest contributions.
Since the “after us” trust has the disabled child as its sole beneficiary and cannot also have other subjects belonging to the family, this limits the extent of its use, since you can delegate everything you have to a third party for the duration of the life of the disabled child, in some families it means subtracting resources, perhaps necessary, from other members of the family.
Another limit that is found is that the trust dopo di noi can be used, with these characteristics and tax benefits, only for the seriously disabled certified by law 104 of 1992 and not also for the less seriously disabled and the elderly who are no longer self-sufficient, for who can resort to the trust, let’s say traditional, i.e. the one not governed by the law of 2016, therefore devoid of those tax breaks which would instead be important even for these weak subjects and devoid of the obligation of the figure of the guardian, a necessary figure in situations where the beneficiary is a fragile subject. They will be able to make use of the trust institution by referring to the discipline drawn up by a foreign country among those admitted to the 1985 Hague Convention, which Italy has ratified since 1992.