Jan L. Warner & Jan Collins
When you divorce or separate, many events happen quickly and oftentimes, things "slip through the cracks."
Although you probably like your daughter-in-law or son-in-law, generally speaking, you don’t want them to inherit from you and don’t want them to receive your assets should your child go through a divorce. What if you leave assets to your daughter who suddenly dies without a will and her husband of three weeks receives up to half of your daughter’s estate?
Although this would not have been your intention, unfortunately, assets often end up scattered to people outside of the family because of a divorce or an unexpected death of a child or other beneficiary.
If you want your estate to benefit only your children, their children, and their children’s children, there is a trust that you can create that will benefit only your lineal descendents that is often called a Protect Assets for Kids Trust (PAKT).
Through this trust, you direct that it will benefit only "my issue" or "my lineal descendents." Once created, you can fund the trust by gifts during your lifetime, by a bequest under your will, or by a distribution from your living trust at your death. You may also choose to use life insurance. When the last of your issue is served by the trust, the remaining funds, if any, can be distributed to charity.
By using this trust, you direct the trustee to pay out only certain specified benefits to your descendents and retain the corpus of your estate – that is, the assets you choose to put in the trust. You should specifically list the types of benefits that you want your beneficiaries to receive – such as health, education, disability protection, education, travel, support under certain circumstances, etc.
By creating this type of trust, you can create a vehicle that will hold your assets and never pay a penny to an in-law. In this way, you can "divorce proof" your estate plan and guarantee that your assets will not be lost on account of the untimely death of or divorce of your children, grandchildren, or great grandchildren.
Although you may think your will or a trust will determine how an asset passes at your death, this is sometimes not the case. The way in which property is titled determines how a property passes, and sometimes this means that the intent of your will or trust is frustrated.
Let’s take Joe and Sally who are marrying, each for the second time. Each of them has a child by their prior marriages. Deciding they want to plan to protect each other and their children, Joe and Sally each sign a will stating that at the death of one of them, the assets go to the other. And if they die at the same time, the assets will go in trust, half to his two children and half to her two children. Each of them believes that their children are fully protected.
But when they purchase their home, they take all of their assets to make the downpayment and to purchase furniture. When the lawyer asks if they want to house titled jointly with right of survivorship, of course they say "yes," not really knowing that this means when one of them dies, the other gets the house automatically.
When Joe dies unexpectedly, Sally gets the house – and all of Joe’s assets. Sally remarries Frank three years later and, because Frank puts money into the house to fix it up, Sally puts Frank’s name on the deed with right of survivorship. This, we now know – but Sally doesn’t – means that on the death of one spouse, the other owns the house – and all assets from their marriages.
Sally dies. Frank now owns the house. All children of Sally and Joe have been "accidentally disinherited."
Bottom line: Understand your options when you plan your estate, including how property is titled.
© 1997, Flying Solo. This information is general in nature and is not intended to be construed as legal advice. Because all situations are different, do not make any decisions until you have consulted with the legal professional of your choice.