Different Forms of Special Needs Trusts
The third party special needs trust, this is the trust that we use most often in estate planning. So, when we are in advanced planning mode, this is the trust that we are most often using. It’s called a third party settled special needs trust. It can be established either by your will or it can be established during life. I definitely have a preference and I’ll tell you up front, I have a preference, other attorneys disagree with me. If it’s established by will, there is a time consuming delay. Probate takes time. With everything firing on all cylinders, nine months, that usually doesn’t happen. Usually we’re looking at a year at least. Can your child function and survive and can whoever is going to be taking care of your child up to a year without getting full access to the resources? Or will they always have to go back to court and ask permission to take out a little bit more money to reach that child’s needs? What’s going to be easier when you ask someone to take care of your child if you tell them, yeah you’re going to have to deal with the court and all this stuff to figure out how to take care of them, or I have this set up, you’re going to be trustee and you’ll name who the trustee is and they will have some resources to meet the child’s needs. In some cases the trustee of the special needs trust is also nominated as the guardian of your child. So it’s even easier, they just have to go to themselves. Sometimes we want separate people just to have more people involved. If it’s established by your will, there is a time consuming delay. There are additional probate expenses; it doesn’t get done for free. What happens if the will is not probated? If the only provision is in your will and that will never gets probated, guess what happens to that special needs trust. It never gets created. What if there’s a problem with probate than that problem translates to the trust. In Georgia, if the original of a will cannot be found, the presumption is that the will was revoked. If we can’t find the will, the law just assumes, you the testator revoked your will, because all it takes to revoke a will is to tear it in half, destroy it, burn it, write void on it, in some cases just a pen going across the page was enough to void a will. If a will doesn’t exist that trust will never be created.
Nadler Biernath LLC assists clients in the Atlanta, Georgia area and throughout Georgia including Kennesaw, Alpharetta, Roswell, Marietta, Buckhead, Johns Creek, Duluth, East Cobb and Dunwoody.