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

UPDATED: Aug 18, 2011

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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


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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