In a recent blog post, I wrote about how the probate of Aretha Franklin’s estate was upended when her family discovered a series of handwritten wills hidden in the musical legend’s home, including one found in between the couch cushions. Instead of dividing her estate equally among her four children, the handwritten wills make different provisions for each child. Franklin’s oldest son (who she had when she was just 12 years old), has lifelong disabilities and lives in a group home. Her handwritten will leaves a much smaller share of her estate to this son and instead instructs two of her other sons – who would receive the bulk of her estate under the handwritten wills – to take care of their older brother.
Franklin is not the only parent of a child with lifelong needs to expect other family members to provide for that child when the parent no longer can. Indeed, it is likely that the other family members are more than willing to provide for the care of a disabled sibling. However, does this type of planning guarantee that the “extra” money that the parent leaves to the family members will be used as intended for the benefit of the disabled child? Absolutely not, even if everyone involved has the best intentions.
What can happen? Life. The caretaker may be the most devoted of siblings, but circumstances can change and the funds left to the caretaker child may not be used for the benefit of the disabled child, despite the best of intentions. There are a host of reasons why the money the caretaker child is left might not be used for the benefit of the disabled child when a parent leaves everything to another family member with an expectation that they will “do the right thing.” What happens if the caretaker child becomes divorced, files for bankruptcy, gets cancer, moves to New Zealand, dies, or becomes disabled themselves?
If a parent wants to be assured that money intended to benefit a disabled child is actually preserved and used for the benefit of that child, a will that establishes a special needs trust for that child provides more certainty than leaving a gift to someone else and expecting that person will be able to do the right thing. A special needs trust is a very specific type of trust that can provide for distributions to be made for a beneficiary’s supplemental needs. If the beneficiary receives government benefits, or may be eligible to receive such benefits, the special needs trust should be drafted in a manner that will ensure that distributions from the trust will not cause the beneficiary to lose those benefits.
There are limitless reasons why a parent might want to make different provisions for their different children in a will, but the expectation that the child receiving the bulk of an estate will share their inheritance or take care of the others is not an assured thing. Special needs trusts must follow very specific rules. Questions about providing for your disabled child in your estate plan? We’re happy to discuss.