Special Circumstances in Estate Planning
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Everyone wants to take care of their family members, protect their assets, and avoid the probate process if possible. Beyond that, every family has unique needs when it comes to estate planning. Below are a few of the special circumstances that may require some additional planning tools available to meet your needs.
Planning for a child with special needsIf you have a child with special needs, this may not change the basic structure of your estate plan, but it may require you to tailor those documents a little differently. For example, if you are leaving assets to a child with special needs you may want to make sure that you have a special needs trust in place that allows them to benefit from your legacy without putting their eligibility for state and federal government benefits in danger.
Estate planning if you or your spouse are not U.S. citizensYou can still accomplish all of the basic goals of a comprehensive estate plan if someone in your immediate family is not a United States Citizen. The main difference is that there are much lower asset thresholds for estate tax purposes. You should make sure your estate planning lawyers know about the immigration status of your family members so he or she can best protect your family and your assets.
Estate planning for the blended familyIf you or your spouse have children from a prior marriage or relationship, whether those children live full time with you or not, you and your spouse should have at least a will. Most likely you will also want to create a trust that ensures the assets you each want preserved for your children are preserved for them, and appoints someone to manage any assets they inherit if they are minor children.
We have worked with families whose primary goal was for the assets of each spouse to benefit that spouse's children. We have also worked with families where both spouses wanted to make it clear that each of their assets were to be divided equally among all of the children, his hers and ours. Whatever your objective is, in a blended family the state laws are unlikely to do what you want if you do not have the right estate planning documents. |
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Estate planning after divorce
Everything changes, including your estate plan, after a divorce. The law will automatically undo certain things about your existing will upon divorce, but it is important to review your plan with an attorney to make sure everything has changed that you want to change, and you have retained everything you want to retain in your plan.
Remember also that if you do not update your beneficiary designations, you may have assets automatically going to your ex-spouse that you intend to go somewhere else.
Remember also that if you do not update your beneficiary designations, you may have assets automatically going to your ex-spouse that you intend to go somewhere else.
Estate planning for the small business owner
Business succession planning is an often overlooked but critical part of a business owner's estate plan. The people you want to leave assets to are not necessarily the same people you want to succeed you in your business.
If you have business partners or co-owners, you may want to consider taking out another life insurance policy that gives the business the funds to buy your shares from your heirs. If you are a sole owner, you may want that same insurance to allow the company to hire your replacement so your family can reap the benefits of ownership but not have to run the business.
If one family member is the person you intend to step in and run the business, you want to make sure this is clear in your own will.
If you have business partners or co-owners, you may want to consider taking out another life insurance policy that gives the business the funds to buy your shares from your heirs. If you are a sole owner, you may want that same insurance to allow the company to hire your replacement so your family can reap the benefits of ownership but not have to run the business.
If one family member is the person you intend to step in and run the business, you want to make sure this is clear in your own will.
Planning for unequal inheritance or disinheritance
Sometimes people have reason to treat family members differently in their estate plan. Sometimes this includes wanting to leave a child or a spouse out of the inheritance. You can disinherit some or all of your children, but there is specific language you must use in Massachusetts to ensure that the probate court will honor that desire.
There is also something called the "spousal share," which entitles a spouse to a certain percentage of the probate assets regardless of what you put in your will. You will want to speak to an estate planning attorney to make sure your documents will be effective to do what you want them to do.
There are also situations where you want each of your children to benefit equally, but in different ways. One child may need to receive their inheritance through a special needs trust. You may have another who has difficulty making good financial decisions, and decide to create a trust so a trustee can help them manage any assets they inherit. Your estate planning lawyer should be able to help you accomplish this as well.
There is also something called the "spousal share," which entitles a spouse to a certain percentage of the probate assets regardless of what you put in your will. You will want to speak to an estate planning attorney to make sure your documents will be effective to do what you want them to do.
There are also situations where you want each of your children to benefit equally, but in different ways. One child may need to receive their inheritance through a special needs trust. You may have another who has difficulty making good financial decisions, and decide to create a trust so a trustee can help them manage any assets they inherit. Your estate planning lawyer should be able to help you accomplish this as well.
Planning for long term care
Ideally you are starting to think about long term care before you need it, because the best way to be sure you are protecting your assets is by creating an asset protection trust or deeding property with a life estate at least five years before you need care. But even if you have missed that window, for example if you receive a diagnosis that will likely result in long term health care inside of five years, it is worth discussing your situation with an estate planning or elder law attorney.
Planning for the care of animals using a pet trust
Massachusetts now recognizes a special form of trust called a pet trust. This means if you choose to you can separately provide for the care of animals in your family, with assets dedicated to that purpose and specific individuals named as caretakers and trustees. Especially if you have pets with particularly long life spans (for example, parrots), or with high upkeep expense, this is an option worth considering.
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Jenna Ordway
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