Parents in New York who have children with special needs may face particular challenges when it comes to estate planning. Parents have a few different options, but in most cases, a trust can be useful.
Those who are wealthy enough to be certain that their child will not need government support might set up a discretionary trust. This can be managed by a trustee who makes distributions to the child. For less wealthy families, a special needs trusts ensures that a child can still receive government benefits while having a trustee manage assets in a trust for additional support.
Some parents may not know whether or not their children will be eligible for government benefits. In that case, the parents can make it possible for the trustee to create a special needs trust if necessary when the parents die. These are all better solutions than one in which parents leave nothing to the special needs child but divide the other assets among the child’s siblings with the assumption that they will care for the child. One problem is that this assumes the siblings are willing to step into this role. The other problem is that it leaves these assets unprotected. They could be seized by a siblings’ spouse in a divorce or by creditors.
Parents may also want to think about whether their child with special needs will need a guardian appointed even after reaching adulthood. Parents of minor children, with or without special needs, should also appoint a guardian. This can be done in the will. Without this in place, the family could end up in litigation to decide who becomes the guardian of the children if both parents die. A trust can also be a useful vehicle to protect assets for children who do not have special needs but who may be irresponsible with money.