Parents of children with special needs face a wide range of challenges, including ensuring their child’s educational and medical needs are met. Taking time to engage in estate planning for a disabled child is another important aspect of parenting a special needs child. Creating an estate plan will enrich and enhance your child’s life now and in the future.
Create an Estate Plan for Your Disabled Child
Creating an estate plan for a disabled child can help you find a sense of peace knowing that your child will be taken care of after you pass away. The estate planning attorneys at Surprenant & Beneski, PC, have helped many Massachusetts residents create a special needs trust. Contact our Southeastern Massachusetts estate planning firm today to learn more about our services.
Protecting Your Child’s Public Benefits With a Special Needs Trust
Using a special needs trust is the most well-used option when estate planning for a disabled child, and with good reason. Children with special needs will receive public benefits, including Social Security benefits and health insurance through MassHealth. To qualify for these important public benefits, the applicant must have a low income and assets. If you give your child your assets using a will, your child could become ineligible for these important services.
Creating a special needs trust will allow your child to benefit from your assets while remaining eligible for public benefits. When you create a special needs trust, you will transfer ownership of your assets to the trust. The trustee will control the amount of income payments to your disabled child and the frequency of those payments. As long as the guardian doesn’t use income from the trust for primary care that Social Security insurance, Medicare, and MassHealth are supposed to pay for, your child will remain eligible for these benefits. Your child can use trust income to pay for luxuries such as medical treatment that isn’t covered by insurance, a nicer care facility, travel, food, and educational expenses.
As a parent, you can create the special needs trust as a living trust during your lifetime. Alternatively, you can order a trust to be formed after you pass away, called a testamentary trust. If you own considerable assets subject to probate, or your estate is at risk for state taxes, you may want to find a living trust to protect your assets during your lifetime.
Establish a Conservatorship or Guardianship
Establishing a guardianship or conservatorship is essential in estate planning for a disabled child. If your child is a minor, you can use your last will and testament to appoint a guardian to care for your child. However, if your child is 18 or over, you’ll need a court-appointed guardianship or conservatorship to care for your child.
Parents can establish guardianship and appoint themselves as the initial guardians. Then they appoint a successor guardian, whom they trust to take over the guardianship when they pass away. In most cases, the guardian will have access to the assets in the special needs trust and will be responsible for distributing those assets to your child according to the terms of the trust agreement.
Direct Your Non-Probate Assets
The probate process can be expensive and complicated. If you have a child with a disability, it’s important that your child can access your estate quickly after you pass away. An estate planning attorney can help your child avoid going through the probate process to access funds. Certain assets are designated to transfer automatically to your beneficiaries when you pass away. When it comes to the following assets, all you need to do is make sure that you’re child is listed as the beneficiary in the account documentation:
- Bank and brokerage accounts with a Transfer on Death (TOD)
- Life insurance policies
- Retirement accounts (IRA, 401(k), etc.)
- Property held as joint tenants or tenants by the entirety
- Trusts
There is usually a simple form that you can submit to the corresponding financial institution to change the beneficiary designation. Many estate planning attorneys will advise gifting retirement assets to a person other than your disabled child to avoid the special needs trust having to pay income and capital gains taxes, which can be a considerable charge. It’s usually advisable to fund special needs trusts with bank accounts, brokerage accounts, and life insurance policies.
Other Ways To Provide For a Disabled Child
In addition to a special needs trust, there are other legal documents you should include in a comprehensive estate plan for a disabled child. Your estate plan should include a durable power of attorney that will allow you to appoint an agent to manage your financial and legal affairs if you become incapacitated. Taking this step is important when you have a child with special needs. If you become incapacitated, your power of attorney will be able to use your assets to assist your child with special needs. An attorney can help you draft a durable power of attorney that will allow your agent to create and fund a trust for your child with special needs.
Your estate plan should also include a letter of intent, which will offer a plain-language explanation of how you would like your child with special needs to be cared for after you pass away. You can use this document to advise a trustee or caregiver about your child’s day-to-day activities, needs, and preferences. You can also include information about your child’s individual likes and dislikes and any other information a caretaker should know about your child.
Reach Out to a Southeastern Massachusetts Estate Planning Attorney
The attorneys at Surprenant & Beneski, PC, recognize that the thought of estate planning can be overwhelming for parents who are already busy parenting a child with special needs. Our empathetic attorneys can help you walk through the estate planning process. Contact Surprenant & Beneski, PC today to learn more about estate planning for a disabled child in Southeastern Massachusetts.