Brian's Blog: Thoughts on Estate Planning, Business, Asset Protection, Family & California Life

Five Things Parents of a Child with Special Needs Must Know about Estate Planning

If you have a child with special needs, there are some things you absolutely must know about estate planning. First, failing to plan will jeopardize any needs-based government benefits your child receives. That’s because California law (i.e., the laws of “intestacy”) will determine how much your child gets from your estate. Think of everything you own going in shares to all of your children, including your child with special needs. He or she will suddenly have a lot of assets counting against the SSI and Medi-Cal limits.

Second, your best planning option will likely be a revocable living trust that takes care of you and your dependents while you are alive and then directs your special needs child’s share into their own special needs trust if you pass away. A correctly drafted special needs trust will not only preserve your child’s access to benefits, it will also ensure those needs that aren’t covered by government assistance are covered. If appropriate, your child will travel, experience cultural events, play sports, have better transportation, receive better care, and even have cable TV. Who can live without cable TV?

Third, don’t think that leaving everything to your typically achieving children will solve everything for you. Nothing causes more tension and destroys family relationships faster than forcing one set of children to take care of a sibling, especially one that requires particular care. A special needs trust can provide the structure for your whole family to live in harmony after you are gone. Plus, if you leave funds to your typical achievers expecting them to care for your other child, know they could lose that money in a divorce or lawsuit or to creditors. If they die before your child with special needs does, the money you leave them may go to their beneficiaries and be unavailable for the person with special needs.

Fourth, remember that other family members could also end up leaving money to your child with special needs. For example, if you died before your parents, any money they were planning to leave you could end up going under their plan (or by law) to your child. That’s likely to be just as risky as if you left the money to your children "free of trust." In other words, make sure your parents (and other family members) know they should name your child’s special needs trust as the beneficiary and never give anything outright to the child.

Fifth, and this is where it can get pretty complicated, make sure that the special needs trust is designed to receive any income from qualified retirement accounts (e.g., IRAs and 401(k)s) and any proceeds from life insurance. There are some pretty hairy tax issues to work through, especially with respect to those IRAs and company retirement plans.

We do special needs planning in our office. Our goal is to make it as easy as possible for our clients, knowing that they (like any parent) have very busy lives. If you know someone with a child who has special needs, we would love to help. In addition to doing their vital estate planning, we can connect them to some great financial planners who specialize in ensuring that beneficiaries with special needs have what they need to thrive.

© 2008 Brian D. Wyatt, A Professional Corporation (All Rights Reserved)

Why Does the Cost of an Estate Plan Vary So Much from Attorney to Attorney?

People frequently ask me, "Why does the cost of estate planning vary so much from attorney to attorney?"  It's a good question. 

Many folks have become convinced that one living trust is pretty much the same as another.  The only difference, they think, is price. 

The truth, however, is that all living trusts are not the same.  But the misperception that they are has affected how most attorneys work.  It has also affected what they charge. 

And there is real pressure to charge less.  Unfortunately, the only way for an attorney to do that is to ratchet up the volume of documents they produce each week, shoe-horn their clients into one-size-fits-all plans, avoid focusing on quality, and neglect the follow-on services and communication necessary to make sure those plans actually work when they are needed. 

Without knowing it, most estate-planning attorneys have become little more than sellers of pre-printed stationary.  To one degree or another, they have stopped practicing law and given in to all of the misinformation that's out there about living trusts. 

But I did not go to law school to learn how to sell you a stack of paper with generic legal writing on it.  I became a lawyer to make a meaningful difference in my clients' lives. 

After all, your estate plan is how you tell your family that you love them for the last time. If your plan creates a big mess for them to deal with, what does that say to them about your affection?  And what does it say about your lawyer? 

That's why we put so much effort into creating the highest quality estate plans for our clients.  More importantly, it's why we build a lifelong relationship with them.  We want to be there for their loved ones if our clients become incapacitated or pass away.  Our clients love that about us, and we appreciate them for caring so deeply about their families.

Sadly, I only know a few estate planning attorneys who still practice like we do.  (What we charge for our services is very competitive with these excellent lawyers.) 

At the same time, I review a lot of trusts put together by those attorneys who have become nothing more than document sellers.  People typically bring these trusts to us because they haven't heard from their lawyer in more than 10 years.  They suspect, and rightly so, that their plan no longer fits their lives, their families, and their finances. 

That's bad.  But it gets worse.... 

Their plans also haven't kept up with the law.  If they become ill, new privacy laws will prevent their successor trustee from taking care of them.  (That means a court will have to declare them incompetent in a public hearing and, sometimes, even establish a costly conservatorship.)  Plus, their decade-old estate-tax planning is horribly inflexible and based on complicated formulas that will make the surviving spouse's life miserable.  They will have no ability to reassert control over their estates should they recover from an incapacitating illness.  The inheritance they leave to their loved ones could be lost to lawsuits, divorce, creditors and unnecessary estate taxes.  (It doesn't have to be!)  Their medical powers of attorney may have expired.  Their assets will go through probate because they haven't been properly put into their trust.  I could go on and on about how document-seller trusts end up going bad over time.

If you have an old estate plan, please don't go to a document seller to get it "redone."  You'll just have to have it "redone" again in about 10 years by a completely different lawyer, assuming you are alive and have legal capacity to make changes at that time.  The process of constantly starting over will probably cost you more over the long run than hiring a lifelong advisor would.  And the planning won't be nearly as good.   

If you want the latest and greatest planning, if you want it to work when it's needed, if you want to save money over the long run, if you want the attorney you've chosen to be there for your family when you can't be, and if you want real peace of mind, find a lifelong advisor whom you like -- whom your loved ones will like -- and make the investment.  You and your family are worth it. 

© 2008 Brian D. Wyatt, A Professional Corporation (All Rights Reserved)