If there is anyone with special needs you would like to make one of your estate beneficiaries, a special needs trust is likely the best way to go about it. Also called a “supplemental needs trust,” these trusts allow you to leave money to a disabled adult without jeopardizing any of their public benefits. A trustee will be able to make distributions to the beneficiary to pay for needs or wants that Medicare or Social Security would not cover. However, because the beneficiary cannot withdraw funds at their own discretion, any funds in the trust are not counted as their income for purposes of need-based assistance programs. If you are trying to leave estate property to someone with special needs, your lawyer will most likely suggest using this type of trust. 

Why Do I Need to Use This Type of Trust to Provide for an Adult With Special Needs?

If you use a more traditional type of trust where regular distributions are made or they can withdraw funds at will they will need to report that money as income or a personal resource when applying for important government benefits. The same is true if you use a will and leave them a lump sum. This could lead to your loved one losing access to benefits that they rely on, forcing them to use the money you leave them to pay for things that an assistance program would have covered, such as medical care and housing. 

Especially because medical care for a person with special needs can be very costly, this money is likely to run out very quickly. They will then return to using public benefits in no better position than before they received your gift. 

Becoming an estate beneficiary can bring a strange mix of emotions. On one hand, if you are inheriting something, it means that a loved one who cared about you has died, so you are grieving. On the other hand, you may be gaining a substantial amount of money, treasured family belongings, or even real estate. Depending on the type of testamentary plan your loved one used and how the administration of the estate is being handled, you might also be confused or upset. In many cases, the named estate administrator does a fine job and you will not need an attorney of your own. In other cases, something goes awry or the process is too complex for it to be handled without an attorney’s help. 

Do I Need My Own Attorney to Help Me Claim My Inheritance?

When everything goes smoothly, you might not need a lawyer during the estate administration process. However, if you encounter any of these situations while attempting to claim your inheritance, it may be in your best interest to work with an attorney: 

• Strange surprises - Your Mom left half her estate to a church you have never heard of? That does not sound right. She was never particularly religious. Something is not right here. Could someone have pressured or coerced her into signing her will or trust? Was she tricked somehow? She was a bit confused towards the end. You might want to call an attorney to help sort out the situation. An estate contest may be in order.
• No estate plan - Your brother did not trust lawyers so he never created an estate plan. Texas intestacy law will govern who gets what share of the estate, but who gets to keep his car? The family heirlooms that were in his possession? You might need an attorney to guide the intestate probate process, especially if other heirs are involved and an agreement will not be easily reached. 
• Questionable administrator - Your uncle is doing a less-than-stellar job as the executor of your grandma’s estate. He is getting up there in age himself and may be showing some early signs of Alzheimer’s, which runs in your family. Or, he is not the most trustworthy individual. You are afraid that he might be keeping more than his fair share of grandma’s estate property. A lawyer can step in and ask the court to appoint a new personal representative. 

Otherwise, if there is anything going on that seems questionable, or it has been quite some time and you have yet to see your inheritance, you may want to get in touch with an attorney. 

 Trusts are increasingly common vehicles for distributing estate assets. Contrary to popular belief, you do not need to be wealthy for a trust to work well in your estate plan. In fact, trusts can be great for smaller estates as they allow your surviving loved ones to skip probate - which can become costly.

Understanding the different types of trusts you can use may help you see how a trust might fit into your estate plan. It is important to work with an experienced estate planning lawyer, who can assess your situation and guide the process to meet your goals. 

What Types of Trusts Could I Use in My Estate Plan?

You may be familiar with the two main types of trusts - revocable and irrevocable. A revocable trust can be changed after it is established while an irrevocable trust generally cannot, although there are exceptions. Some types of trusts available in Texas that you may not be familiar with include: 

If you have taken the time to create an estate plan, you probably want it to be enforceable as written. The last thing you want is your beneficiaries or relatives filing lawsuits related to your estate plan. A strong estate plan can help keep the peace among a family after the testator or grantor is gone. However, when an estate plan contains certain flaws, it can have the opposite of the intended effect. Estate litigation can lead to a lot of hurt feelings on both sides of the lawsuit and sometimes causes a permanent rift among a family. 

Some of these mistakes are relatively easy to make, especially if you attempt to do your estate planning on your own. Your best bet is to work with an experienced estate planning attorney who can help you avoid these potential pitfalls and more. 

What Mistakes in an Estate Plan Can Open the Door for Estate Litigation?

Avoiding future litigation at all costs is often a primary goal of estate planners, particularly if there is pre-existing family conflict. Attorneys who have been in this field long enough have seen the devastating effect estate litigation can have on the decedent’s family and loved ones. Some flaws or problems with an estate plan that can invite litigation include: 

Executors, estate administrators, trustees, and some powers of attorney are all considered fiduciaries in the realm of estate planning. Being a fiduciary is an enormous responsibility. Fiduciaries are required to act strictly in the interest of the individual, or the beneficiaries of the trust or estate they represent without considering their own personal interests. They are required to avoid any potential conflicts of interest, and are not to exploit their position for personal gain in any way. Unless you are a professional fiduciary, you can easily find yourself in over your head. An attorney who is experienced at aiding fiduciaries can help you avoid potential problems, or maybe help resolve existing problems. 

When Should a Fiduciary Consider Finding an Attorney?

If you are simply serving as personal representative for a close relative’s small estate - and the rest of the family is getting along - you may be able to complete your duties on your own, without a lawyer’s help. For more complex or high-conflict situations, it may be in your best interest to seek legal assistance. You may want to get in touch with an attorney in these situations: 

• Contested estate - If you are an estate representative (such as an executor) and you have a feeling that a contest is imminent, you may want to be represented by your own attorney. Estate contests can be legally complex affairs requiring litigation. A lawyer can also take steps to protect you against any accusation of wrongdoing. 
• Trust management - Managing a trust can be quite challenging. Especially if you intend to begin investing funds contained in the trust on behalf of the beneficiaries, you will need to tread carefully. A few easy-to-make mistakes could deplete funds, introduce tax liabilities, or interfere with asset-protection features. Consulting an attorney first can protect both the trust and you. 
• Power of attorney conflicts - If you are serving as the agent for a living principal in a high-conflict situation, an attorney can help you avoid missteps that could lead to litigation. Even the appearance of a conflict of interest—for example, if you are the financial power of attorney for a close relative whose estate you would likely benefit from—could cause problems. 
• Tax and accounting obligations - Figuring out how to handle an estate or trust’s taxes is not easy. You may also be legally required to keep a detailed accounting of all a trust or estate’s assets, expenses, and distributions. You would be far from the first person if you find yourself a bit in over your head. An estate planning attorney can take some of this burden off you and help ensure compliance. 

The benefits of being represented by a lawyer as a fiduciary are numerous. Working with an attorney is one of the best ways fiduciaries can protect themselves.