Protect my daughter

[olucy]

What is the name of your state (only U.S. law)? Texas

I am detailing out my will. I want to split everything 50-50 between my son and daughter. How can I leave 50% to my daughter and her husband not have any claim to it either now or in a divorce. I have a house with usual furnishings, car and 3-400,000 worth of investments. If I leave 1/2 to her, how can I make sure he can never get access to it now or claim 1/2 or all of it in a divorce. Thanks

 

[curb1]

Your daughter needs to put the inherited assets into an account that is not commingled with any joint accounts. Also, she needs to be careful not to commingle the use of the assets.

"Revocable Living Trust: While these trusts can avoid probate they can do more. If you're married and you've inherited assets or received gifts, setting up a revocable trust designed expressly to only hold inherited/gift assets can be powerful tool to protect those assets from becoming tainted as marital assets subject to distribution if you divorce. Name the trust to highlight its limited purpose, limit trustees to your family members (not your spouse), transfer only inherited/gift assets to the trust never marital assets, and operate it so as to avoid commingling trust and marital assets. It's not only avoiding probate, it's a supplement to a pre-nuptial agreement or "divorce insurance"."

http://www.laweasy.com/n/160/checklist--family-business-heir

 

[latigo]

Under Texas law (as is true in all of the states) any property that your daughter should inherit will be her sole and separate property free of any right, title, interest or claim of her husband.

This “separate-property” character applies also to any property she owned prior to the marriage and any property gifted to her prior to or during the marriage. And with the exception of income derived from it, the separate character attaches to any proceeds from such property.

So with regard to your concerns about a future divorce -

As long as she does not transmute her inheritance into community property – for example commingling it with marital community property to the extent that it cannot be reasonably traced and identified - it would remain her sole and separate property and not be subject to a division under a divorce decree.

However, if she receives the inheritance unconditionally, then she has the power to do with it as she pleases.

If you feel that the anticipated value of her inheritance and the risks of her husband obtaining unwanted access are such as to justify the effort and expense, then you should consult with a knowledgeable attorney regarding creating a testamentary trust through your will.

But I would discourage you from creating any form of an inter vivos trust (a trust created during the lifetime of the settlor/trustor). At least not until you have gone over the pros and cons with your attorney. And especially not a revocable living trust for the sole purpose of avoiding probate or on the false pretense of avoiding death taxes.

With regard to a revocable living trust (RLT) I can assure you that curb1 who has offered that suggestion has never experienced the difficulty and prepared the reams of paper work necessary to unwind one of those legal monstrosities - just in order to regain control of one’s own property!

 

[Zigner]

What is the name of your state (only U.S. law)? Texas

I am detailing out my will. I want to split everything 50-50 between my son and daughter. How can I leave 50% to my daughter and her husband not have any claim to it either now or in a divorce. I have a house with usual furnishings, car and 3-400,000 worth of investments. If I leave 1/2 to her, how can I make sure he can never get access to it now or claim 1/2 or all of it in a divorce. Thanks

Daughter can GIVE anything she owns to her husband...

 

[TinkerBelleLuvr]

Make sure that the funds she receives as an inheritance is put aside separately from "joint" funds. Then she can use those funds to maintain any property that she inherits. That prevents a STBX from saying that "joint" funds were used on the inheritance.

 

[curb1]

latigo,

What are you talking about?

You said, "With regard to a revocable living trust (RLT) I can assure you that curb1 who has offered that suggestion has never experienced the difficulty and prepared the reams of paper work necessary to unwind one of those legal monstrosities - just in order to regain control of one’s own property!

If daughter sets up a revocable trust to separate the inheritance there would be no problem for her to have access to her "own property". Or, she could set up a separate account and just be very careful not to commingle.

Again, what are you talking about? "curb1 who has offered that suggestion has never experienced the difficulty and prepared the reams of paper work necessary to unwind one of those legal monstrosities"? I have, and you are exaggerating.

 

[TrustUser]

curb,

he has some strange bias against living trusts. just disregard it.

 

[FlyingRon]

The issue is still you can set things up to "protect" your daughter (or she could do it herself), a trust would work, but so would her keeping all the inheritance separate so it does not get mingled with marital property.

However, what Zig was alluding to (not specifically a slam at trusts) is that maybe the daughter doesn't feel she needs protection from her husband. If she has constructive use of the funds (either from the inheritance or being allowed to withdraw from the trust), nothing stops her from putting it in their marital accounts or outright giving it away to anybody she chooses. It's not possible for Mom to meddle in her affairs from the grave unless she wants to get real restrictive in a spendthirft trust to keep the daughter from doing what she likes.

 

[TrustUser]

i think that is the best type of trust to leave your kids, where the assets stay in trust, and the kid benefits from the income or use of the assets.

 

[FlyingRon]

i think that is the best type of trust to leave your kids, where the assets stay in trust, and the kid benefits from the income or use of the assets.

Depends on the kids. My daughter I trust. Her trust is wide open. My son on the other hand has a spendthrift trust which has one of my other relatives as the trustee (though not his sister!).

 

[TrustUser]

i wasnt thinking so much of trust (in the sense that the kid would go out and blow the money), but rather having one pot that is protected.

one cant really protect his own money from creditors, so it is nice to have at least one protected pot that could pay for the essentials, should something unforeseen occur.

a parent does not usually care too much whether he can send his kid off to europe for a vacation, but he does want to know that his kid will never starve or such.