Q: How can parents dying without an estate plan impact a special needs child?
Estate administration can be difficult in cases where people die without a will.
Even when people have been told for 30 years by a trusted estate planning attorney all the reasons why they should have a will (and maybe even trust), and even when they expressed an understanding of the need for these legal documents, people still often never get around to it. That’s what Aretha Franklin’s family attorney reportedly said was the reason the “Queen of Soul” died without a will.
Several things happen when you die without a will. First, you are considered to have died “intestate”, which means your property will be distributed in accordance with your state’s intestacy statute. While state laws differ, they generally provide for property to be distributed to the decedent’s spouse and/or children, if any, then parents, if any. If no one is living in those classes, the statutes will generally look to siblings, grandparents, and more distant relatives until they find an heir.
As you might expect, especially in the case of the wealthiest celebrities, many legitimate and illegitimate would be heirs often surface seeking a claim against the estate.
The “Queen of Soul” reportedly died leaving four adult sons and no spouse. According to the intestacy statute in her home state of Michigan, her four children will share equally in her estate. One of her sons reportedly has special needs. A niece will be the estate’s administrator.
It is particularly important for people with special needs children to have an estate plan in place that includes special needs planning. Creating a trust for a special needs child enables you to provide for the child in a manner that does not jeopardize any government benefits to which they may be entitled as a result of their disability. While that may not have been a concern for someone as wealthy as Ms. Franklin, those of more modest means and whose estates cannot adequately support the often-exorbitant costs associated with providing a lifetime of care to a special needs child should consider legal counsel immediately if they have not already done so.
Also, a last will and testament is required to designate who the legal guardian(s) will be for any minor children—special needs or not. In the absence of a will, the court will decide who raises your children—and it may not be who you would have chosen or wanted.
Through the use of various trusts, people can not only provide for special needs children, but can also put their own assets in a living trust so that they can be transferred outside of probate after their death. This is a faster, cheaper, and more private way to transfer assets to your intended beneficiaries because trust assets pass outside of the public probate process. There can be many tax advantages and other reasons to incorporate revocable and irrevocable trusts in an estate plan.
If you would like to create an initial estate plan or need help modifying existing one, the Law Office of Thomas J. Hansen can help. Contact us today to schedule a free consultation.
From our office in Park Ridge, we represent clients throughout Illinois in all aspects of estate planning, tax preparation, and real estate transactions.