I’ve seen plenty of families disinherit a disabled child by leaving the family assets to non-disabled children under the theory that those assets will be used to take care of the disabled child. This is unnecessary and riddled with complexities. For instance, what happens if you leave your assets to your daughter thinking that she will take care of your disabled son and then your daughter dies, gets divorced, spends the money or becomes disabled herself.
New York State has a special trust that can be used for a disabled child. It is commonly referred to as a special needs trust. Using a special needs trust for a disabled child allows you to include your disabled child as part of your overall estate plan ensuring, to the best of your ability, that there will be resources available for the child’s needs. The assets of a special needs trust, if drafted properly, will not be counted as assets of your disabled child for Medicaid or SSI purposes. This allows for there to be a pool of resources for the benefit of the disabled child and unlike leaving assets to your well children, their lives do not affect the trust. Of course, one or more of them might be the trustees of the trust so choose wisely.
Families with disabled children who desire to implement special needs trusts, should be doing so using revocable trusts, rather than Last Wills and Testaments. Most often, when you are creating continuing trusts after your death, probate should be avoided.