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  • Writer's pictureWorley Elder Law

How to Protect Your Loved Ones After Your Death

Updated: Jan 7, 2021

We often receive calls advising someone needs a “simple will” and that’s all. Very rarely is that the case once we talk about their wishes and concerns, usually due to some skeletons in the family closest they hoped to not have to acknowledge. These issues are what we call the Elephant in the Estate Planning room and they most often cover addiction, mental illness, incarceration, and less-than-responsible handling of the finances. Understandably, there are hesitations sharing information about a wayward child or family member, but our job is not to judge, it’s to ensure your wishes are followed and to plan for the both the known and unknown. If this situation sounds familiar, read on to learn some of the ways we can help you help those you care about.

How Your Trust Can Help a Loved One Who Struggles with Addiction

Substance addiction is by no means rare, impacting 19.7 million Americans aged 12 and older, with that number likely to grow due to the pandemic. Because of its prevalence, navigating a loved one’s addiction is actually a relatively common topic in everyday life. But it is something that needs to be considered when working on your estate planning. We all want our loved ones to be safe and experience a successful recovery, and a properly created estate plan can help.

A “simple will” gives your assets to your named beneficiaries outright, with no oversight on how those funds are used. Imagine someone struggling with drug or alcohol addiction suddenly receiving a check for $50,000. Now, we can hope they take that money and use it to get sober and improve their life, or we can PLAN for ways to help them help themselves. This usually involves setting up a Trust.

Funding for Treatment

One of the ways your Trust can have a positive influence on your loved one’s life is by helping

fund their addiction treatment. If a loved one is already struggling with addiction issues, you can

explicitly designate your Trust funds for use in his or her voluntary recovery efforts. encouraging

involuntary treatment until the problem is stabilized and the loved one begins recovery.

Incentive Trusts

Incentive features can be included in your estate planning to help improve the behavior of your

loved one. For example, the person struggling with an addiction can be required to maintain

steady employment or voluntarily seek treatment in order to obtain additional benefits of the

Trust (such as money for a vacation or new car). Although this might seem controlling, this type

of incentive structure can also help with treatment and recovery by giving a loved one something

to work towards. This approach is probably best paired with funding for treatment (discussed

above), so there are resources to help with treatment and then benefits that can help to motivate

a beneficiary.

Lifetime Discretionary Trusts

Giving your loved ones their inheritance as a lump sum could end up enabling addiction or make

successful treatment more difficult. Luckily, there’s a better option. Lifetime discretionary Trusts

provide structure for an heir’s inheritance. If someone in your life is (or might eventually) struggle

with addiction, you can rest easy when you know the inheritance you leave can’t be accessed

early or make harmful addiction problem worse.

3 Ways Your Trust Can Help a Loved One with Mental Illness

In 2017-2018, 19% of adults experienced a mental illness. When a loved one suffers from a mental illness, one small comfort can be knowing that your Trust can help take care of them through thick and thin. There are some ways this can happen, ranging from the funding of various types of treatment to providing structure and support during his or her times of greatest need.

Let’s explore a few ways you can help take care of a loved one struggling with mental illness with the help of your estate planning attorney:

Trustees Can Help Watch Over Them

Selecting a Trustee isn’t always an easy feat. That’s one of many decision-making areas where

we’re more than happy to step in and walk you through the process. When you have a loved one

battling mental illness, your choice of a Trustee becomes even more of a nuanced decision.

We’ll help you deduce the perfect person to not only manage the assets contained within the

Trust but also keep a compassionate watchful eye on your loved one benefitting from the Trust.

An astute Trustee can look for early warning signs surrounding your loved one’s mental health

issue and make sure to get them connected to the care and services they need in no time.

Lifetime Trusts Provide Structure and Support

Most people probably consider an inheritance (small or large) as a blessing. But this may not be

the case when an individual is dealing with depression, anxiety, hoarding, or illnesses like

schizophrenia. Lifetime Trusts are an excellent way to take care of your loved one without

saddling them with a challenge on top of what they are already experiencing.

It Can Contribute to Voluntary Treatment

Similar to the loved ones struggling with addiction, your Trust can be designed to help cover

treatment for those living with mental illness. If your loved one is involved in an inpatient care

facility or an ongoing outpatient program, you can structure your Trust so that its disbursements

cover the costs of that treatment as time goes on. This also helps your loved one because it

relieves them of the responsibility of managing large sums of money on their own. They can rest

easier knowing that their care is covered without having to set up a complicated payment plan on

their own or enter into massive amounts of debt.

What probably affects even more families than the concerns noted above involve loved ones with questionable financial habits. Unlike addiction or mental health, there’s not a clear treatment program for this issue, however that doesn't mean there are no options in estate planning to address this concern.

Why a Spendthrift Trust Can Be a Great Solution for Your Heirs

A spendthrift Trust is commonly used to protect a loved one’s interest from creditors, a soon-to-be ex-spouse, or his or her own poor management of money. Generally, these Trusts are created for the benefit of individuals who are not good with money, might easily fall into debt, may be easily defrauded or deceived, or engage in some risky behaviors that may result in squandering of funds. While you may not want to seem like you’re trying to control your loved ones from The Great Beyond, protecting them from themselves provides comfort for you knowing they will have a safety net and a benefit for them—creating a safety net.

Spendthrift Trust Basics

Put simply, a spendthrift Trust is for the benefit of someone who needs additional assistance

managing or protecting his or her money.

The spendthrift Trust gives an independent Trustee complete control and authority to make

decisions on how the funds in the Trust may be spent and what payments to or for the benefit of

the beneficiary are necessary according to the Trust document. Under a spendthrift Trust, the

beneficiary is prohibited from spending the money before he or she actually receives distributions.

These restrictions prevent the beneficiary from squandering their entire interest or having it

garnished by the beneficiary’s creditors. The Trustee controls the assets in the Trust, including

managing and investing the funds once the Trust is made irrevocable. Most Trusts become

irrevocable after the grantor has passed, but some are irrevocable from the start.

Creating a Spendthrift Trust

A spendthrift Trust is created essentially in the exact same manner as any other Trust. However,

the vital difference of a spendthrift Trust is that the Trust instrument must contain the right

language to invoke the law’s protection. As a knowledgeable estate planning attorney, we can

provide guidance on how to best structure this provision, so it meets your family’s needs.

Navigating a loved one’s addiction, mental illness, or financial responsibility issues is more than

enough stress already without having to worry about what will happen after you pass away. Let

us take some of the burden off your shoulders by helping you build an estate plan that positively

impacts your loved one and doesn’t contribute to the struggles at hand. That way, you can get

some peace of mind that your loved ones will be taken care of after your passing and go back to

focusing your efforts on the solution. Call or email us today to see how Worley Elder Law can help.

941-448-1302 |


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