Everyone has an Estate Plan--- is it the correct plan?

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1 Estate Planning for Families with Special Needs Children Presented by Julia Nickerson, JD Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization Nickerson Law Group PC Estate Planning and Asset Protection 3801 N. Capital of Texas Highway, Suite J220 Austin, TX Everyone has an Estate Plan--- is it the correct plan? If you haven t created a plan of your own, the government has one for you 1

2 Government s plan... Involves probate, Expensive, Time Consuming, Drama, Favors the government over special needs child s inheritance, Relies on a judge to make decisions Don t Worry Children with special needs may never be able to compensate for your failure to plan Guardianship of Estate needed if incapacitated adult receives inheritance outside of a trust (expensive and administrative hassle don t let this happen!) 2

3 Commit to updating your plan Make it a goal that the transition of your financial wealth will be as easy as possible for your family Estate Planning isn t the most fun thing on your to do list Know going in that creating your plan may be ANNOYING, TIME CONSUMING AND EXPENSIVE BUT, it is less annoying, less expensive and not as time consuming as a Guardianship of the Estate! 3

4 Purpose of a will Legal instrument signed with all the correct legal formalities which states the wishes as to how assets will be transferred upon death What is probate Court process after someone dies to transfer decedent s assets 4

5 What is probate Will is filed in the county in which decedent lived Lawyer prepares legal paperwork: MUST have a lawyer! Executor attends court hearing Can be simple or complex depending on how good the will is A word about Do It Yourself Wills Probate attorneys love legalzoom, online do-it-yourself forms and people who don t sign their wills in an estate planning law firm! 5

6 Texas Estates Code If your will is not prepared with necessities and signed with formalities, probate is not an easy process Probate is public File all documents. Most counties: online List of decedent s assets becomes a court record People in the future can find out who beneficiaries are, how much beneficiary received 6

7 Probate takes some time Assets are frozen while waiting to go through the probate process Is there an easy button? 7

8 Will v. Living Trust Will Living Trust Probate No incapacity planning No Probate Incapacity Planning Maybe 2 nd spouse protection Public Confirms 2 nd spouse protection Private What about a special needs trust though... 8

9 SPECIAL NEEDS TRUST AND WILL/LIVING TRUST COMBO Will or Living Trust Special Needs Trust SPECIAL NEEDS TRUSTS Why do they work? The different types 9

10 What are they? Hold assets for the benefit of a disabled person without disqualifying disabled person from SSI and Medicaid Why people set them up In Texas, if someone qualifies for SSI, then they automatically qualify to received Medicaid SSI is means based If recipient makes too much money or owns too much, then they are disqualified Thus, SSI recipient wants to receive inheritance in a Special Needs Trust 10

11 Its easy to be disqualified from SSI Owning more than $2,000 UTMA (once a child turns age 21 in Texas, UTMA accounts are considered a resource) A job earning more than $1,070 a month(gross) Inheritance from parents & grandparents Big Mistake... Disinherit special needs child only so they can qualify for SSI & Medicaid The one person who needs an inheritance more than any other is a special needs child! 11

12 Payback v. Non-Payback You don t want your inheritance going into a payback! The right type... No payback provisions required Allows parents, grandparents, relatives and friends opportunity to preserve beneficiary s SSI and to supplement those benefits during lifetime 12

13 Public v. Private Private Prepared by your attorney You choose the terms and the trustee Your trustee determines investments Your trustee makes distributions Pooled Trust Joined through ARC of Texas ($ % annual) 529 ABLE What are they? New savings vehicle A simple account for disabled people Achieving a Better Life Act of 2014 You will hear about them! 13

14 529 ABLE Good things: Easy and no cost to set up A disabled, but mentally competent person can have more than $2,000 without losing eligibility for SSI or Medicaid. Post income tax contributions but grow tax free! Should you get one? Beneficiary is in charge of the account Good for small amounts: if over $100k, disqualified! Each beneficiary can only have one account Not good for inheritance Works like a pay back trust 14

15 SPECIAL NEEDS TRUST AND WILL/LIVING TRUST COMBO... Is this enough? Will or Living Trust Special Needs Trust Some assets don t pass by will 15

16 Beneficiary Designation Need to make sure your beneficiary designation forms are filled out so they work in conjunction with your will or living trust and special needs trust Don t put minor or special needs individual as beneficiary! Disqualification problem! Problems with Guardianship of the Estate 16

17 SPECIAL NEEDS TRUST, WILL/LIVING TRUST and BENEFICIARY DESIGNATION COMBO Will or Living Trust Life Insurance Special Needs Trust Retirement IRA or 401(k) Estate Plan not just for the wealthy Will/Living Trust Special Needs Trust Beneficiary Designations Title of assets Financial Power of Attorney Medical Power of Attorney Naming guardian of minor or special needs children Counsel to get it right: you don t know what you don t know Trusted people to call with a question or emergency A place to go when you need updates due to life changes or law changes 17

18 How much does it cost? Will Plan Single $1,500-$3,000 Couple $2,500-$4,500 Living Trust Plan Single $2,500-$4,000 Couple $3,500-$5,500 Prices reflect medical directives and powers of attorney, beneficiary designation instructions, coordination of account titling, organized estate planning binder, deed retitling. Supplemental Needs Trust $1,500 To work with our office: expect to spend between $4,000 to $5,000 for a single person $6,000 to $7,000 for a couple How much does it cost? A LOT Less than trying to fix it after a parent passes away! 18

19 Special Needs Forum Events School Year October 23, 2014 Financing Life Long Care November 20, 2014 How to Apply for SSI February 19, 2015 March 26, 2015 April 16, 2015 Estate Planning How a Special Needs Trust Works Residential Choices 19

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