Last Will and Testaments Require Probate

On a regular basis, clients or potential clients will tell me that “I have a Last Will and Testament, so I won’t have to Probate when I die.”   Unfortunately, this couldn’t be further from the truth.

A Last Will and Testament, or a Will for short, is a document that is created during life, that identifies that upon the Will maker’s passing he or she wants a named individual to act as Personal Representative, or Executor.  The Personal Representative, or Executor, is appointed to gather in the deceased person’s assets, pay legitimate creditors and then to distribute the remaining assets to those individuals identified in the Will as the deceased person’s heirs.  Before the named Personal Representative or Executor has any authority pursuant to a Will, the Will must be authenticated by the District Court for the county in which the Will maker lived when he or she died.  Only then will the Personal Representative or Executor have the legal authority to gather and manage the deceased person’s assets.   Or in other words, until a judge reviews a Will and finds that the Will is a valid Will, the person identified as the Personal Representative or Executor has no authority and cannot do what the Will identifies that the deceased person wanted done with his or her assets.  The legal proceeding by which a judge reviews a Will to determine whether that Will is a valid (or invalid) Will and gives authority to the Personal Representative, or Executor, to do what the Will says should be done with the deceased person’s assets is called Probate.

There are several effective ways to avoid Probate, the most common of which is by having a properly drafted Living Trust.  If you have additional questions regarding Wills and Probate, or want to learn about how to avoid Probate through a Living Trust, contact Mountain View Law Group for a free Estate Planning Consultation with Addison D. Larreau.  Mountain View Law Group can be reached at (801) 393-5555 or at MountainViewLawGroup.com.

Estate Planning to Care for Children with Special Needs

Parents of children with special needs must be particularly careful in how they estate plan to avoid creating a scenario in which their special needs child is disqualified for benefits such as Social Security Disability Benefits, Medicaid, housing benefits and other needs based benefits for those with special needs.  The use of a special type of Trust, known as a Special Needs Trust  is the ideal way to protect a special needs child’s right to benefits while also making assets available to supplement and enhance the special needs child’s standard of living.

If a parent fails to create a proper Estate Plan or creates a typical Will based or Living Trust based Estate Plan, upon the parents’ death, any inherited assets will transfer to the special needs child or his or her guardian.  Upon this occurring, the special needs child will typically be disqualified for need based benefits, such as Social Security Disability, Medicaid and housing benefits, until the inherited assets have been depleted.  Once the assets inherited from the parents or grandparents have been depleted, the special needs child will then need to reapply and requalify for benefits. This can create a significant hardship for the special needs child and his or her guardian.  There is a better way to Estate Plan to protect a special needs child from this hardship – the use of a Special Needs Trust (“SNT”).

A SNT is a Trust created by the parents or grandparents of a special needs child which provides that assets owned by the Trust are to only be used to supplement – and not replace – financial, medical and housing benefits for which the special needs child qualifies or may in the future qualify.  Someone other than the special needs child will act as Trustee and will have discretion how and when to use the SNT assets.  The special needs child has no ability to compel the Trustee to use or distribute funds for the special needs child’s benefit.  Because the special needs child cannot determine when or how the SNT assets are used, the SNT assets are not attributed to him or her as assets or as income for determining his or her qualification for needs based financial, medical or housing benefits.

The great benefit of a SNT is that assets left for the benefit of a special needs child can be used to supplement the standard of living for the special needs child, rather than be consumed in providing for the basic needs that typically would be provided for with financial, medical and housing benefits available to the special needs child.  SNT assets would typically be used by the Trustee for activities such as recreation, education, travel, uncovered medical and dental needs and other activities or needs which were provided to the special needs child by the parents or grandparent while they were alive.  This allows the parents or grandparents to continue to elevate and bless the life of the special needs child even after the parents or grandparents have passed on.

SNT are complex and must be very carefully drafted to be effective in preserving a special needs child’s financial, medical and housing benefits.  Addison D. Larreau, Mountain View Law Group’s Estate Planning Attorney, has extensive experience in drafting and implementing Special Needs Trusts for concerned parents and grandparents.  Please contact Mountain View Law Group at (810) 393-5555 to schedule a complimentary appointment with Addison D. Larreau to discuss your Estate Planning needs.