Estate planning is essential for all children, but Estate Planning for a special needs child requires special care. Typically, a special needs child’s parents are familiar with the various applicable government programs. Often, parents invest a great deal of time and effort in qualifying for these programs. If the parents should die, a poorly drafted estate plan could disqualify the child from these programs. Further, there might not be a person willing or able to take on the challenging job of reapplying for lost government benefits on the Special Needs Child’s behalf.
We take estate planning for a special needs child seriously. I would be happy to speak with you about your particular situation, so feel free to contact us to set up a free consultation. Meanwhile, here is some data about Special Needs estate planning that applies in many cases.
Prenuptial Agreements: If you have a child with special needs and are planning to marry, a Prenuptial Agreement is essential. Marriage is about love, but it is also about business. You now know first-hand that not all marriages are successful. Consequently, a Prenuptial Agreement is a must. The Prenuptial Agreement can spell out the obligations each of you will have for the child. Further, the agreement can spell out how funds are to be used for the child’s care. For more, please read our articles about Prenuptial Agreements.
Irrevocable Trusts: If you have a special needs child from your prior marriage, you may have assets you wish to keep apart for that child’s benefit. An Irrevocable Special Needs Trust is an excellent tool to hold assets for your special needs child, allowing them to qualify for needs-based government benefits as well as providing shelter from creditors and divorces. Forming and funding this trust before your wedding is a great strategy to keep these assets from becoming entangled in your future marriage. In addition, this preemptive act helps protect these assets from your future creditors and if your union is unsuccessful, from your spouse. For more information, read our section about Irrevocable Trusts.
Revocable Trusts: A Revocable Living Trust can be a useful tool when you don’t wish to give up control over an asset, but you want to document that you entered the marriage with the asset and to separate these assets from your marital assets. This is especially true if these funds are used to care for both yourself and your special needs child. The Revocable Trust can state that if you are ever incapacitated, the funds can continue to pay your special needs child’s expenses. Further, the document can appoint a trusted person or team of persons as your successor trustee.
Intestacy, Having No will at Death: If you have no plan, then your assets pass under the State’s plan. The State has no automatic Special Needs Trusts, so if your child inherits through intestacy they may lose all needs-based government benefits. Further, the intestacy rules might give all your assets to someone who will not provide for your Special Needs Child. The Intestacy Rules do not take your wishes into consideration.
Your child becomes an adult at age 18. A Guardianship becomes necessary if you child has special needs and is not able to care for himself. To learn more about Guardianship, follow this link. Delaying the process can be costly. Often a parent provides a special needs child with excellent care but then dies unexpectedly. This leaves the child with no person ready or legally able to step in and provide supervision. A long-term special needs child guardian plan is an excellent idea. We would be happy to assist you brainstorm options and develop your plan.
Will: Without a Will, the state decides where your assets pass at death. The State provides no special needs trusts and disregards your wishes. Therefore, in most cases step one is the formation of a Special Needs Trust in your Will.
Financial General Power of Attorney: Without a properly drafted General Power of Attorney, your agent will be unable to use your money to provide care for an adult, special needs child.
Revocable Trust: A Revocable Living Trust has many purposes. But, they are especially useful if you provide for your special needs child’s care. For example, what if you become incapacitated, who will have authority to use your funds for your child’s care? We can design a Revocable Trust whose terms allow your funds to continue providing for your special needs child without disqualifying the child from needs-based government benefits.
Irrevocable Special Needs Trust: An Irrevocable Trust is an excellent tool to protect assets from creditors, keep assets separate from your spouse’s assets, reduce estate and inheritance taxes and remove property that might cause a dispute between your spouse and children at your death.
If you have any questions about estate planning for a special needs child or any other estate planning topics, feel free to contact us to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning for a special needs child so you can make the best decisions for yourself and your family.
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Peter provided outstanding advice and preparation of a will and trusts.
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