Question: Its been fifteen years since we signed our will. Although our children are now grown, we still want them to get everything. Is there any reason to re do it?
Answer: Great question and one that we are asked often. While it may be the case that the will is sufficient, there are a number of reasons that at a minimum you should consult with an attorney, have it reviewed and see whether there is any additional estate planning that you should consider. While a basic Will that leaves everything to each other and then your children may be your ultimate goal, there are certain planning techniques that you can take advantage of to protect your assets.
First, an outright bequest of all your assets to your spouse may not be appropriate. As we get older, the chance for long term care, either at home or in a facility, becomes more of a possibility. When the first spouse dies, it may be necessary for the second one to apply for Medicaid to assist in the cost of home care or nursing facilities. Medicaid is a need-based program that has certain income and asset limits. If all of the assets pass directly to the spouse, this could disqualify them for benefits. A common planning technique in our practice is to leave assets to a Martial Trust or Supplemental Needs Trust for the benefit of the survivor. This would enable asset protection in the event the survivor needs long term care.
Second, you may want to consider how you leave your children their inheritance. It is common to leave the bequest outright. This can be problematic if your child is on government benefits, has creditor issues or is going though a divorce. A strategical planning technique is to leave your children their inheritance within a descendance trust. This will offer protection from creditor and divorcing spouses. Also, you have the option of making your children their own Trustee of the Trust or naming a third party Trustee. Additionally, you may want to consider having a trigger Supplemental Needs Trust within the Will. This will allow inheritance to be protected in the event that one of the beneficiaries become disabled and reliant on government benefits. The inheritance will be paid to a Supplemental Need Trust and their government benefits will not be interrupted. The money in the Trust can be used to support their other needs.
Finally, during your consultation it will be prudent to discuss other estate planning – including advanced directives (i.e health care proxy and power of attorney) and setting up a lifetime trust. These additional estate planning documents are crucial in making sure all of your goals and needs are met, including asset protection. As we get older, the goal of estate planning can sometimes change and it is important to review these documents every few years.
- Robin Burner Daleo, Esq. and Nancy Burner, Esq.