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Jewish World Review
Sept. 11, 2006
/ 18 Elul, 5766
Dying mom wants embattled son to inherit well
By
Jan L. Warner & Jan Collins
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http://www.JewishWorldReview.com |
Q: I am a widow and, at age 67, have been diagnosed with terminal cancer. My doctors give me six months. Here is my dilemma: I have two children a son and a daughter both married. My husband and I always said that we would treat them equally when the last of us died, but my son is in the middle of a nasty divorce. He has three young children (ages 13, 10 and 8), and his wife has made up lies about my son to keep the children away from him and me. She has also said in her divorce papers that I am getting ready to die and therefore, the court should consider what my son is to inherit which, if I treat my children equally, will be upwards of $500,000.
I want to make sure that what I leave my son doesn't fall into her hands or be considered by a judge to be available so that my son will have to pay more child support. My lawyer told me that the best thing to do is to leave everything to my daughter and let her give it to my son after the divorce, but something tells me that is not a good idea because if my daughter dies, I don't think my son-in-law will split the money. Someone mentioned a trust to me, but I don't understand what a trust does. I am looking for a way in which I can take care of my son and then my grandchildren, free of interference by courts and his wife.
A: There are ways in which to handle this, but as you have figured out, it is not by leaving your son's share outright to your daughter. In addition to the potential of your daughter dying before your son, there is always the possibility that financial problems in your daughter's marriage could result in the funds being spent.
While the word "trust" frightens many people, in reality, a "trust" is nothing more than a "bucket" into which stated assets are placed either during life or at the time of death. The keeper of the "bucket" is the trustee whose responsibilities should be specifically set out within the terms of the trust document.
In this way, the manner, timing, and amount of distributions can be accomplished. At some time in the future, the trustee should be directed to "empty the bucket" and distribute the balance of the assets in a manner you choose.
That said, in our view, one way to address this issue is for you to consider leaving half of your estate to your son in trust with a bank trust department or reliable third person as trustee. The terms of the trust could provide, for example, that so long as your son is under a court-ordered obligation to support either his wife or his children, the trustee would be under an affirmative duty to distribute nothing to your son. Or, if you desire, you could give the trustee the discretion to distribute only the income earned by the trust each year.
You could also direct the trustee to begin making set distributions to your son after your youngest grandchild turns 21 to avoid your funds being used to educate your grandchildren, if that is your desire. On the other hand, you could direct the trustee to provide funds for each grandchild's education only after your son and daughter-in-law have made contributions.
We suggest you contact a lawyer who is creative enough to allow you to complete your estate plan in a way that will make you comfortable that your wishes will be carried out because, unfortunately, the documents described here don't come off the word processor.
Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
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