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Sheryl Frishman
BY Sheryl Frishman
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5 Reasons Why Parents of Special Needs Children Must Have a Will

Even though we never want to face it, there will come a time when we will no longer be here. This is especially difficult to face when you have a child with special needs.  The thought of our special needs child being in this world without us is too much to bear.  However, the lack of proper planning for the future will only hurt the child we want to protect.

In order to have a proper plan in place, it is recommended that parents of special needs children have the following:

  1. A Letter of Intent
  2. A Last Will and Testament
  3. A Supplemental Needs Trust
  4. Advanced Directives
  5. Guardianship

Your Last Will and Testament

This article will focus on the importance of the Last Will and Testament (“Will”).  It is recommended that all people die with a Will. However, having a Will is particularly important for those with special needs children.  A Will is the cornerstone of an effective estate plan. It is a written instrument that provides for the disposition of your property after your death. If you own a home, a car, have a checking or savings account then you have an estate and you need a Will!

Here are the top five reasons you need a Will

1. You are not invincible

Many people feel that because they are young and healthy, nothing is going to happen to them any time soon.

Do not wait until it is too late to do the planning. If you are reading this article you are ready to do the planning.  Mahatma Gandhi said “Learn as if you were going to live forever. Live as if you were going to die tomorrow.”  We cannot be sure what tomorrow will bring. The time to plan is now!

2. Having a Will saves money, time and heartache

Even if you do not care about the details once you are gone, appreciate how terribly difficult it would be during bereavement for your loved ones to deal with your estate without a Will. Your loved ones will be required to go to court to appoint an administrator (someone to handle your estate) when this could have been easily done in a Will.  It is important that you choose this person and rather than a judge, especially when you have a child with special needs.  You can save your loved ones time, trouble, arguments, expenses, and delays by having a Will.

3. Having a say in how your estate is to be distributed and who will become guardians.

If you die intestate (without a Will), your property will be distributed by a judge according to the laws of the state in which you reside at the time of your death. If you have a minor child at the time of your death and the child has no living parent, the judge will also choose the guardian for your child and the trustee to manage the minor child’s inheritance.

If you have an adult child with a disability and have never gone to court to seek guardianship, a judge will also choose the guardian for your adult child with a disability. A Will allows you to make recommendations as to whom you wish to nominate as your child’s guardian. It would be terrible for a judge to make these decisions without your input.

4. Protecting your child with special needs

If you have a child with special needs who requires public benefits to access adult services, your child must have to very little in assets. If your estate passes by intestacy (without a Will) it is very likely that your child with special needs would inherit assets.  Inheriting money would be disastrous because it could knock your child off precious public benefits.  Currently, the asset threshold for receiving public benefits is $2,000.  Thus, even if you have a small estate a Will is necessary.  Having a Will which creates a Supplemental Needs Trust for your child with special needs or leaves money to a Supplemental Needs Trust is extremely important.

5. Leaving your family with no guidance

This is the most important of all the reasons to have a Will and other necessary documents to plan for your special needs child’s future.

Find an attorney who specializes in estate planning

If you have a child with special needs, it is critically important to use an attorney that specializes in the unique issues involved with estate planning for special needs families. This is not something every attorney or even a general estate planning attorney can do.  You need to find a professional in your state that specializes in special needs planning so you can assure your child is protected.  This is not something you want to “bargain hunt” for. Not doing the planning correctly can end up costing so much more than using the properly qualified attorney.

Sheryl Frishman

Written on May 8, 2013 by:

Sheryl Frishman is of Counsel to the law firm of Barger & Gaines.  and has worked almost exclusively with people with disabilities and their families for over 18 years. She is an expert in the areas of special education, disability and special needs law, and is a sought after speaker for professional and family organizations. In addition to Sheryl’s legal work, she is a zealous advocate for the needs, acceptance, and integration of people with disabilities in the community. Sheryl is involved and active in many organizations in the disability community including taking leadership roles in many of them. This includes being a current board member of The Arc of the USA, the largest national community-based organization advocating for and serving people with intellectual and developmental disabilities and their families. Sheryl has been the recipient of many award and honors for her work in the special needs community. Her eldest son, Aaron, has Autism, and is her inspiration.
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