Protecting Your Assets & Your Child: Wills and Special Needs Trusts

We Thought We had more time! 
By Julie Davis

On July 30, 2010 the reality of procrastination crashed down in my life. My husband, Richard, was killed in a horrible accident at work. He was only 52. Neither one of us knew that Friday morning our kiss and hug goodbye would be our last. We thought we had more time.

Despite the overwhelming grief of losing my husband of 25 years and leaving my 3 three children fatherless; the reality of our procrastination was only the beginning of a yearlong nightmare. Unlike many people I knew how important estate planning and having things in order for our daughter, Mary Beth, who has special needs, was. But we kept putting it off.

With Richard's death, no Will, and no Special Needs Trust for Mary Beth; I was left with a legal mess and no clue how to resolve it. I began countless phone calls to anyone who could shed light into this ever growing pit. I assumed that the house wasn't an issue, but I was wrong. In NC if a spouse dies without a Will the property is divided between the surviving spouse and children. The adult children could deed their portion to me, but because Mary Beth has special needs her portion could only go into a Special Needs Trust or it would count as income and would cause her to lose her CAP/Medicaid.

This was only a preview of things to come. When I was informed Mary Beth would receive Workman's Compensation Survivor Benefits and Social Security Survivor Benefits, I thought Mary Beth and I would be okay financially until I could adapt and return to work. My relief was short lived. Medicaid considers the survivor benefits as income for Mary Beth. She was in danger of losing her CAP/Medicaid. How in the world could this be? The system meant to help a family who loses a parent was turning out to be anything but helpful.

I urgently needed to contact an attorney who specializes in Special Needs Trusts. I was in shock due to losing my husband and could barely comprehend the process of legal necessity. Time and words are too great for me to explain, blow by blow, what it has taken to keep Mary Beth's CAP/Medicaid in place. The process included developing the Special Needs Trust then having it approved by DSS and the NC Industrial Commission, no small feat. Now after 3 attorneys, 2 Guardian ad Litem's and hours of hard work the legal documents are in order. This still left me wondering how I was going to manage financially on one income when all the bills remained the same! Then the next big obstacle was Social Security Survivor Benefits, they could not be placed in the Special Needs Trust. As you might guess the amount Mary Beth was to receive was over the allowed amount so now I must pay a deductible, track the expenses then report them to DSS as quickly as possible before her Medicaid will become active - this is now a monthly process.

I wouldn't wish my journey from the last year on anyone. One of the biggest lies we tell ourselves is that we can do it later-that we have more time. Please act now!

Julie

Julie
Published: Sep 13, 2012 12:00am

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