The best way to leave assets to loved ones who are married is “in trust.” This can guarantee the assets will not be lost in a divorce, and it can guarantee the remainder will stay in the blood family. Considering that about 50 percent of marriages end in divorce with the assets being divided, leaving assets to a loved one “in trust” can shield the assets from loss in a divorce.
In fact, it protects the assets from all creditors, if worded properly, with the exception of the IRS or if the beneficiary owes child support.
Let’s say Joe (a widower) has a son, Jack, who is married to Jill. Jack and Jill have a son named Gerard. Without legal advice, Joe might put Jack on his accounts as a joint owner.
This can be considered a gift, exposes the assets to creditors’ claims that Jack might have against him, and will leave the assets owned jointly with Jack unprotected from lawsuits and divorce. That’s a steep price to pay for convenience.
So, when Joe passes, the jointly owned assets might go to Jack, but if Jack later becomes divorced or gets sued, he can lose those assets, and Gerard might never see a penny.
The better plan would be for Joe to create a revocable living trust and re-title his accounts and house into his trust. Jack can be the successor trustee. Joe’s trust will direct that his assets in trust will go to Jack “in trust” for Jack’s benefit with a remainder to Gerard.
Furthermore, it can state that if Gerard inherits when he is under age 30 (or 35 or 21), that his share will be held “in trust” for his education, etc.
Leaving assets “in trust” is one of the most powerful things one can do to keep property in their family.
In Joe’s case, let’s assume the assets are $1 million, and they all go to Jack free of trust because Joe didn’t get legal advice and plan accordingly.
What can happen?
Jack can get divorced, and Jill can get half of what Joe left to Jack – or $500,000. Losing 50% percent of your assets to an in-law because you did not plan to avoid doing so is a steep price to pay.
A small amount of planning can do wonders to give you peace of mind in knowing your assets will stay in your family, perhaps for generations, and will not be lost to divorcing in-laws.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com