How best to protect assets for a special needs niece after her aunt’s death?

I am 58 and my husband is 53; married 4 years. All assets are co-mingled; 401K’s name spouses as beneficiaries. We do not have a Will or Trust yet. We would like to leave our assets to one another and agree that the surviving spouse will leave remaining assets to my 27 year old special needs niece, who has a protected SN trust. If I die first, how can I insure that this is followed (in the event of re-marriage)?

Asked on August 18, 2011 Texas

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The best way to resolve your dilemma is to establish a living trust for you and your husband where your assets are placed in a trust with all assets you have later placed in the name of the trust after it is created. This includes cars, homes, bank accounts, brokerage accounts and the like.

The trust can have mirror bequests to each other with a survivor's trust in the amount of the unified credit for estates then in effect.

The trust would also have a provision for a resulting trust for your special needs niece after the last of you passes where a specific trustee would oversee this trust for your niece.

You should consult with a wills and trust attorney regarding your desires.


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