Asset Protection Archives - Future Wealth Navigator

Ask anyone how they would define “trusts and estates law” and the odds are the answer will uniformly focus on the act of making the plan as to who will receive a person’s assets when he or she dies.

What happens, however, when the person who makes the so-called plan loses the cognitive ability not only to plan, but further, to carry on with the tasks of ordinary daily living. When that happens, the person we expect to be planning may be taking actions that unbeknownst to him or her are, in fact, jeopardizing the financial well-being of the estate in question and the ultimate inheritance that he or she intends for his or her loved ones to receive upon his or her death.

A recent decision from the Supreme Court, Suffolk County (Acting Justice Chris Ann Kelley), In the Matter of the Application of T.K., 2024 N.Y. Slip Op. 50045 (Suffolk Cnty. Sup. Ct. 2024), illustrates what can happen when the person whom we expect to make the estate plan is no longer competent to protect the very assets contemplated for disposition under that plan.

Sean R. Weissbart —

Mom and Dad, a lovely couple in their early 50s, meet with me to discuss their estate planning. Mom shares, “our two children—ages 23 and 25—are special and productive. One just graduated law school and the other finishes medical school next spring.” Dad jumps in, “when we die, split all of our asset equally among our kids.”

And so, I ask, “would you like them to receive their inheritance outright or in trust?” Mom answers nicely, but firmly, “like I said, our children are fantastic. We want to give them full access to their inheritance. No interest in tying it up in trusts.” To which I respond, “got it. But just to confirm—are you aware trusts can protect assets from taxes, divorce, and creditors?” Their interest piques. Dad says, “we hadn’t thought of that. Please tell us more.”