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Limited Choices

To minimize the complexity of the planning, and thereby help keep program costs down, we place the following limits on the choices of fiduciaries and on the alternatives for distributing assets at death:

Fiduciary Limitations

As part of the planning process, you will need to select fiduciaries you trust to step into your shoes for the following roles if you die or become incapacitated:

Guardian: The person or persons who will care for your minor children or disabled adult children if you – and, if married, your spouse – die or become incapacitated

Health Care Agent: The person who will make medical decisions for you if you become incapacitated

Property Agent: The person who will make financial decisions for you if you become incapacitated

Executor and Trustee: The person or trust company that will handle your financial affairs and manage the trusts for your children at your death (or, if married, at the death of the survivor of your spouse and you)

Fiduciary choices under the program are limited as follows:

  • You may not name co-agents, co-executors, or co-trustees
  • You are permitted to name co-guardians, if they are married to each other
  • You may name only U.S. residents to serve as fiduciaries
  • If you are married:
    • You must name your spouse as first property agent, health care agent, executor, and trustee
    • You each must also name the same succession of guardians and successor property agents, executors, and trustees
    • You are permitted to name different successor health care agents
Disposition of Assets

Under the program, the distribution plan for your assets at death is limited in the following ways:

  • If you are married:
    • You must leave everything to the surviving spouse at the first death
    • Any children from a prior relationship must be treated the same as children of the current marriage
  • At your death (if you are single), or at the death of the survivor of your spouse and you (if you are married):
    • You may choose to leave up to 3 dollar-amount gifts “off-the-top” to individuals or charities (e.g., $500 to a favorite charity or relative)
    • Your remaining assets will be divided equally among your children, with the one available alternative being a double share for your child with special needs
    • The share for your child with special needs will be allocated to a third-party supplemental needs trust for that child
    • You may choose to have the shares for each of your other children distributed outright (after the child reaches age 18) or retained in a separate trust for the child’s health, education, and support until they reach a certain age chosen by you
  • You may name contingent beneficiaries to receive the remaining assets if none of your descendants were to survive you.  The contingent beneficiaries may be:
    • Your siblings (or ½ to each side’s siblings, in the case of a married couple), or
    • Up to 8 individuals or charities that would share equally in the remaining assets

If these limitations do not work for your family, we encourage you to consult either with another estate planning attorney that has supplemental needs planning experience, or with our office outside of the pro bono program, in order to prepare appropriate documents for you.

Supplemental Needs Planning Outside of the Program