Many times Baby Boomer client has parents who have a fair amount of money, as does the Boomer client. If the parents simply leave their money to the child as an outright gift under the parents' wills or living trusts, that money will be includible in the taxable estate of the child and also be subject to creditors, divorcing spouses, etc.
Now, the child can certainly go to his or her parents and suggest they go back to their lawyer and pay the lawyer a hefty fee to draft up a trust to hold the child's inheritance, but the parents may be reluctant to pay that money, don't want to focus on the complexities of the trust, and may simply keep putting it off.
However, a better idea is for the child to hire his or her own lawyer to draft the trust, so that the trust contains provisions beneficial to the client. After this is done, the client--let's call him Sam Jones--goes to the parents and says "I would like you to go to your attorney and make this simple change. I want you to add the following sentence to your wills (or living trusts, as the case may be): 'Notwithstanding anything in this instrument to the contrary, any time a distribution is indicated to be distributed to my son, Sam, it shall instead be payable to the Sam Jones Irrevocable Trust dated August 14, 2006, to be held as provided therein.'"
Because it's simple and won't cost the parents much money to have the lawyer do it, and it doesn't take much involvement or thought on the part of the parents, the parents are much more likely to get this small change done.
The inheritance will now flow directly into the trust the child created, and have the following benefits:
Sometimes an "Inheritor's Trust" is referred to as an "Irrevocable Trust." You can read more about it at Irrevocable Living Trust.
In other words, by having the child set up the trust, but having the parent fund it via a small change in the parent's will or living trust, the child can still receive his or her inheritance, but in a form that will protect it as the years go by.
K. Gabriel Heiser is an attorney with over 25 years experience in elder law and estate planning. Heiser is the author of “How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets,” an annually updated practical guide for the layperson. For more information about this book, visit Medicaid Secrets.
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