Special Needs Trust

Parent Q&A

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  • My sister has a middle schooler with some special needs, and the good news is she has two close friends who are willing to raise her son jointly as his guardians. (FWIW, I'm not the guardian b/c a cross-country move from NY would be too disruptive for him and these friends have known her son all his life.) The rub is that her husband has been dragging his feet for years to do any estate planning and appoint guardians, even though he is apparently OK with the guardian plan and does not want his family to raise their son. I saw her recently and reiterated that they really need to get this done, and from her response, it doesn't sound as if she thinks much progress will be made. Is there anything she can do independently to build in some safeguards until her husband finally agrees to move forward? Can she do her own will without her husband to at least document her preference for guardians? Other ideas? Thank you BPN!  

    Under California law parents need to nominate a guardian in a will. In the unlikely and tragic event that both parents die simultaneously, if one of them has nominated a guardian in a will, that choice will be respected. Your relative may just want to do her own will with guardian nomination, but should check out the law in New York state.

    If the husband is on the same page as she is but just dragging his feet in terms of getting it documented, couldn't she make an appointment with an estate planning lawyer, get all the paperwork done, and then present the documents to him to sign? His signatures will need to be notarized but there are notaries who will come to your house, if that's what it takes.  My husband was a pain about this process too - I think there are some people who feel like making a will is the first step towards death or if they don't make a will, they won't die.  

    It seems to me that guardians are only needed if both of the parents are dead. If she creates a will naming the friends as guardians and she and her husband die together, say in a car crash, and the husband doesn't have an estate plan, guardianship should follow whatever she specifies. Same goes if he predeceases her. The only problem come up if she predeceases him. I'm no lawyer and don't know what the courts would do in that case, but I suspect the estate plan of the wife would have some weight, even if she had died some years before.

    Or she can just go to an estate lawyer, get everything written up, and ask him to sign. That's not ideal, and he could always balk at that point which would mean money wasted. But it sounds like there's general agreement and it's just the process he's dragging his feet on.

    A trip to an estates attorney would be the way to go.  Possibly you could be one of the trustees if she sets up a trust (which seems like a good idea but I am not a lawyer and she should check with a lawyer).

  • Financial Planner for Special Needs

    (1 reply)

    I'm looking for a financial planner, preferably fee-only, who is well-versed in Special Needs planning. Local would be nice, but in this virtual era (zoomopocene?), not necessary.


    Our special needs attorney recommended James Bassett (with Edward Jones) in Danville and he has been managing a special needs trust for us for the past few years. We have been very happy with him.

    James Bassett | Danville CA Financial Advisor | Edward Jones

Archived Q&A and Reviews

Attorney for special needs trusts

Sept 2014

I'm looking for an attorney with experience setting up special needs trusts for family members with mental health issues. Ideally, that person would be not only smart but compassionate. I'm pretty sure I need this kind of trust, but hope the person could advise me about whether a living trust is a better choice. Anon

The Academy of Specials Needs Planners has a list of attorneys who specialize in Special Needs Trusts on their website: www.specialneedsanswers.com. You'll likely find great resources there. Audrey

Kevin Urbatsch is an expert on special needs trusts http://www.myersurbatsch.com/about-us/your- legal-team-attorneys/kevin-urbatsch/ and, because of his established expertise, we asked him to draw up a special needs trust for us. He's very knowledgeable for sure, but he's also extremely busy, and when we had questions after the SNT was completed, he didn't respond to phone calls or emails. (Friends of ours who have used Kevin's services have had a better experience though.) Eventually we turned to Greg Wilcox (510) 665-8400 gregwilcox-atty [at] comcast.net on Shattuck in Berkeley, because another friend has been very pleased with Greg's assistance with her brother's SNT. When my husband and I worked with Greg, we eventually decided that a discretionary trust was the more appropriate strategy for our family situation. Greg was very helpful and thorough, and we recommend him. Best wishes. Anon

I would like to recommend attorney Linda Durston. She can be reached at 510/526-1376, and is at 1604 Solano Avenue in Berkeley. She was actually recommended to me by a woman at the social security office to set up a trust for my brother. Ultimately I decided I didn't need one, but she seemed very knowledgable about this specialized kind of work. Her website is http://www.durstonlaw.com/Special.html Lori po8dancer [at] yahoo.com

For special needs trusts, talk with Kevin Urbatsch at Myers Urbatsch, PC in San Francisco. I've worked with him on several occasions with my clients and he's knowledgeable and a warm person to work with. If you want an East Bay person, talk with Linda Durston on Solano Ave. in Berkeley. She does estate planning and elder law. Joanna

Linda Roodhouse in downtown Oakland. She is a fine person and understands the situation. http://www.lombardiloper.com/attorneys/linda-roodhouse/ Julia

Special Needs Trust lawyer familiar with NY laws?

Aug 2013

Hi - My family is looking to set up a Special Needs Trust for my adult brother, who lives in Manhattan. Does anyone know of an attorney either practicing in NY or familiar with NY benefits laws? My brother lives on his own and gets SSI, but we would like to supplement this a little now and then (for clothing, gym membership, etc) and make sure that when our two sets of parents (one in DE and one here in CA) pass away that he will have a little security. Any help appreciated. Thank you. Grateful sister

I can recommend a couple of NY elder care, disabled and trust attorneys - which are closely related issues.

James A. Robbins ROBBINS & ASSOCIATES, P.C. Attorneys at Law 60 East 42nd Street, Suite 4600 New York, New York 10165 (P) 212-808-0444 (F) 212-808-4150 Set up complex trusts for my family

I have less contact info, but a strong reco for another: Ellyn Kravitz, 3rd Ave near Grand Central Station very experienced with New York Medicaid, and with elder law generally. Hope this helps

2008 - 2011 Recommendations

Future plans for special need children

April 2008

We have two Special Needs boys. they are 11 and 7. our 11 Y.O. has Fetal Alcholism, ADHD, mild retardation and Social problems. My 7 Y.O. has verbal apraxia, so he speaks very little, he is also very socially and developmental disabled. All of these, (most anyway) are invisable, so on sight my kids look perfectally ''normal''. This is a bigger problem than people understand, and as they get older it increases in degree of difficulty.

Here's where we need advice. Someday we will not be around to arrange their lives. that day may be 10 or 20 years away, but my partner and I cannot help but wonder how they will get through life. So the question is, are there parents, like us, out there who have come up with some ideas on how to leave your Special Need family members when you are no longer around to protect them. Any thoughts would by helpful.

I too am the mom of a special needs boy (now 12) and I have lots of anxiety about his future should something happen to me. I think your fears are very common and normal to have. But there are steps you can take to protect your kids. One is establishing a special needs trust. This would require an attorney but it protects your children legally if something were to (god forbid) happen to you. A family law attorney should be able to help you establish a trust for your children. Best of luck

 Lawyer needed re guardians for special needs child

October 2005

We are looking for a lawyer who is specialized in setting up guardianship. We don't own anything so we don't need a trust. We want to make sure that our child is taken care of in case we can't. Our child may fall into the category of special needs, but we will only know for sure in a few years. Any recommendation? -a

The Dale Law Firm hosts free workshops on limited conservatorships and special needs trusts (in Walnut Creek and S.F)for parents of special needs kids- they may be able to help you or refer you to someone who can. Their website is http://www.achievingindependence.com/ and their workshops are posted in the calendar section of ''The Source'', newsletter of the Family Resource Network of Alameda County. FYI: Family Resource Network is a great source for information, referrals, support groups, etc re caring for children with special needs and their phone is #510-547-7322. Peggy

I can recommend the Law Offices of Jessica Watson to help with legal issues involving children. I felt Ms Watson was knowledgable and approachable. http://sfchildandfamilylaw.com Pascal

Financial Planner for Special Needs Trust

May 2005

I'm looking for a financial planner with experience planning for a special needs child as well as retirement and college. I would want to use fee-based services. I'm also looking for a lawyer with experience setting up special needs trusts. Any recommendations from other families with special needs children? Jessica

Special needs, college, retirement financial planner: Pat Jennerjohn of Focused Finances in Oakland (510) 763-3851. She's fee only and her fees are reasonable. Special needs attorneys: The Dale Law Firm (www.achievingindependence.com). They also have free introductory classes.

Attorney for Special Needs Trust

October 2003

Can anyone recommend an estate planning/wills attorney specializing in setting up estate plans and special needs trusts for a family with a disabled child who will need life long care? Thank you. Diane

I have heard an attorney give a talk on special needs trusts. Her name is Polly Levin at Stephen W. Dale & Associates in Walnut Creek. Phone: 925 280-0172; www.achievingindependence.com. The law office also gives free workshops. Kathy R.

I believe that the Law Offices of Robb and Ross in Mill Valley specialize in just that. (415) 332-3831

I do not have a disabled child with special needs, but my lawyer is a wonderful woman that specializes in wills, trusts, estate planning and probate. She'll research everything to do what's best for you. She's easy to work with and will put you at ease. Everyone that I've sent to her has been extremely happy with her work. I highly recommend her.
Linda J. Miller 2140 Shattuck Avenue, Suite 604 Berkeley, CA 94704