Estate Plan, Option #1
Leave All Assets to Special Needs Person
Parents may leave all of their property to the special needs family member, either outright or in trust. If the funds are left outright to the individual, all control over the funds falls to the individual. If left in trust, the trustee is not given discretion over this matter; he or she must distribute income or principal for the individual's care.
Independent financial existence. Theoretically, depending upon the size of the estate, the individual may be able to lead an independent, financial existence.
May need a guardian to manage funds. What is the family member's legal capacity? The special need may leave the individual without the capacity to manage funds or to take legal title. Placing the funds in trust will resolve this problem. If no trust is used and the individual does not have legal capacity, a guardian must be appointed.
May limit access to charitable or government assistance. Giving the special needs person direct control over assets could limit his or her eligibility for government and charitable programs. Government assistance is often "means" based. If the individual is the outright beneficiary of the estate, the government or charity will count those funds as income for the purpose of means testing. Placing assets in a trust, directed to provide ordinary care, will NOT solve this problem. The government and many charities will view the trust as an asset in any means based test.
May subject assets to government claims. The government may require that assets be used to reimburse expenses the government has made on behalf of the special needs family member.
May cause family discord. Leaving all your assets to the special needs family member will disinherit your other children. If those siblings are charged with caring for the special needs child, family discord could erupt. In addition, if the other siblings are minors, the parents must also consider their care in addition to the care of the special needs child.
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