How can I delay my son's inheritance of my property until he is more financial stable?

A fellow caregiver asked...

My son, who is 30 years-old, has had several, quite severe, financial problems and I want to put a reasonably long space in time before he inherits my property so that he can stabilize and maintain his situation. Can I leave my property in trust until such times that the trustees die at which time I would like my son to inherit the property completely and can I make that provision in an ordinary will? How would the property be transferred in these circumstances? Please help. I am getting a lot of conflicting information and vague answers!

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

Certainly, your inclination to utilize a trust as a method of insuring that following your death your son's inheritance will be properly managed on his behalf and protected from the claims of his creditors and his own lack of financial sophistication is a good one.

Your choice of trustee for the trust is a major concern.  This is the person or institution, such as a bank trust department that will make the determinations of both how to invest the trust assets and when and in what amounts to give funds to your son.

Your thought about having the final distribution from the trust be based upon the timing of the death of the initial trustee may not be helpful because the initial trustee may die while your son is still in need of a trust.  You may be better off considering having a successor trustee to take over the duties of trustee should your initially named trustee die.  You also may wish to consider giving the trustee the authority to be able to give as much property to your son, including the entire amount, as the trustee determines your son is able to manage properly.

You can make such a trust either a testamentary trust which means that the trust will be contained within your Will or you can have the trust exist as a separate document.  Many people prefer trusts that are not made a part of a Will because they are more private and are not subject to the supervision and extra costs involved in having a testamentary trust which is overseen by the Probate Court.

If you decide to do a testamentary trust, your executor would transfer your assets through his authority as executor into the trust.  If you use a non-testamentary trust, your executor can transfer your assets into the living trust (trust not done as a part of your Will).  Either way it is a simple process.

A trust would be very helpful in your situation and it can be precisely tailored to your needs.  You should consult a lawyer to have one drafted in accordance with your wishes.