I have guardianship of my son who is autistic, I have a few assets and a house. I do not want my ex to get his hands on my son's property, (including my house) if I should die.
What do I need? a will or a special trust?
Generally, a special or supplemental needs trust (SNT) should be established to ensure the child or disabled person remains eligible to receive Medicaid, provided, among other things, that the trust is created by the parent, grandparent, legal guardian of thi individual or a court. When the beneficiary dies, the State is reimbursed from any remaining assets for health care costs paid with public assistance funds. A SNT that is established by a third party and funded with property not belonging to the applicant for state assistance (usually Medicaid) can avoid the payback provisions of the federal Medicaid Act (usually referred to as a D(4)(A) trust). The SNT is designed to maintain the child on public assistance benefits, while receiving trust distributions for other essential extras that are not provided by govnerment programs.
You should also check in your state for pooled trusts (D4C). This is a similar type trust that is established and managed by a non-profit organization. As you child is autistic, there may be such an organization for autistic children that is fairly attuned to your child's special needs.
By proceeding in this direction, you'll ensure that your autistic child is provided for, without fear that your ex may step in and use the available assets for himself, leaving the child totally dependent on public assistance funds. Good luck!
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If your son is disabled, you most likely need what is known as a Special Needs Trust. Although your son is allowed to have a house and approximately $2,000 in liquid assets, these would be controlled by your ex-wife who could step in to be his guardian if you pass away. In addition, the State can assert a lien on the property and claim the house once your son passes away for the expenses incurred by your son for his care. A special needs trust allows your son to have his needs based benefits protected. In it, you appoint a trustee, of your own choice, to manage the assets within. Upon your sons passing, the remaining assets will go to whomever you want and not the state.
This response does not constitute the establishment of an attorney-client relationship. It is also not to be taken as firm legal advice as such would be contingent on a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter. The response is meant to be a helpful guide to a question in a manner which reflects the limited information provided by the inquirer.
With the facts you have presented, a trust for your son (you refer to "my son's property" but I assume you mean the property he would inherit from you when you die) is probably the best choice, with a trustee being someone other than your ex. You need a Will also (whether or not the trust can be incorporated in your Will that becomes effective at your death or if the trust should be established now during your lifetime requires further discussion/facts). There is still a bit of a "fine line" here because your ex may be his guardian when you die, so the trustee would probably have to have some interaction with her if that were the case, including decisions such as where your son will live, how funds for his benefit will be expended, ... Hope this helps.
There is a great deal more you can do for your son by spending the time with an experienced estate and asset protection attorney and putting together a special needs trust, than by simply adding a testamentary trust to a basic will.
For your son's future, it is well worth the time and expense.
One resource to find an attorney near you with experience in special needs planning is www.wealthcounsel.com
Please note that this answer is generic in nature and does not constitute legal advice with regard to any particular circumstances or facts and does not establish an attorney client relationship.
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