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San Antonio Express-News
January 31, 2006

Daughter has no "right" to inherit

copyright 2006, Paul Premack

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Dear Mr. Premack: I am 60 yrs old and my only source of "income" is thru SSI and food stamps. My mother died intestate two years ago in New York; everything went through probate and my father got it all. He is now 92 yrs old, still lives in New York despite his failing health, and is also without a Will. Is there anything I can do to protect what I believe should be my inheritance? I am an only child and my father has no other living relatives. It would sure make my remaining life easier. – LM

I infer from your desire to protect your inheritance that you feel it is threatened in some way. Perhaps you and your father are not on speaking terms or have some other weakness in your relationship. Your disability could make travel difficult, and long-distance phone calls may be beyond your budget. Distance may have worsened you ability to maintain a healthy relationship through the years, but the health of that relationship has more to do with protecting your inheritance that does the law.

You must realize that the assets acquired by your parents do not belong to you, and now that your father is sole owner he can choose to dispose of the assets in any way he desires. If he does not choose for himself, then the intestacy laws of New York determine the identity of his heir(s).

New York law is different in many regards from the laws in Texas. Texas is a community property state that guarantees certain right to a surviving spouse, while New York follows the common law separate property rules. But both states recognize an individual’s legal right to create a Will, a Trust, or another property arrangement that shift ownership of assets upon the individual’s death. Both states give those individual choices higher priority than they give to their intestacy laws.

If your father continues to ignore the situation, then it is possible that you will inherit his estate via the intestacy laws. You will, however, have to go through a complex legal process in court to prove your claim. It will be expensive and it will be time consuming, and your inability to travel will make securing your claim very difficult.

If your father decides it is appropriate to prepare an estate plan leaving his assets to you, things will be easier all around. You will not have the same problem proving that you are the proper claimant, as he will have identified you already.

So that his estate never has to go to court and you do not need to travel to New York, one way he could set things up would be in a living trust. His assets would be placed into that trust, and upon his death provisions for your benefit that accommodate your disability would be activated. He could name a bank trust department to oversee the process.

To accommodate your disability further, the trust should contain "special needs" provisions. The SSI benefit you now receive provides you with a small amount of monthly income and also pays for all your medical care through Medicaid. If you directly inherit your father’s estate, you will lose those benefits. A special needs trust reserves the estate for those needs that SSI does not cover, preserves your medical coverage, and allows the trust assets to supplement your comfort for additional years.

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Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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